The Lost History of the Ninth Amendment

Hardcover | April 28, 2009

byKurt T. Lash

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The Ninth Amendment has had a remarkably robust history, playing a role in almost every significant constitutional debate in American history, including the controversy over the Alien and Sedition Acts, the struggle over slavery, and the constitutionality of the New Deal. Until very recently,however, this history has been almost completely lost due to a combination of historical accident, mistaken assumptions, and misplaced historical documents. Drawing upon a wide range of primary sources, most never before included in any book on the Ninth Amendment or the Bill of Rights, Kurt T.Lash recovers the lost history of the Ninth Amendment and explores how its original understanding can be applied to protect the people's retained rights today.The most important aspect of The Lost History of the Ninth Amendment is its presentation of newly uncovered historical evidence which calls into question the currently presumed meaning and application of the Ninth Amendment. The evidence not only challenges the traditional view regarding theoriginal meaning of the Ninth Amendment, it also falsifies the common assumption that the Amendment lay dormant prior to the Supreme Court's "discovery" of the clause in Griswold v. Connecticut. As a history of the Ninth Amendment, the book recapitulates the history of federalism in America and the idea that local self-government is a right retained by the people. This issue has particular contemporary salience as the Supreme Court considers whether states have the right to authorizemedicinal use of marijuana, refuse to assist the enforcement of national laws like the Patriot Act, or regulate physician-assisted suicide. The meaning of the Ninth Amendment has played a key role in past Senate confirmation hearings for Supreme Court justices and the current divide on the Courtregarding the meaning of the Ninth Amendment makes it likely the subject will come up again during the next set of hearings.

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The Ninth Amendment has had a remarkably robust history, playing a role in almost every significant constitutional debate in American history, including the controversy over the Alien and Sedition Acts, the struggle over slavery, and the constitutionality of the New Deal. Until very recently,however, this history has been almost compl...

Kurt Lash is Professor of Law and the W. Joseph Ford Fellow at Loyola Law School, Los Angeles. While in law school, Professor Lash served as Articles Editor of the Yale Law and Policy Review. After graduation, Professor Lash served as Law Clerk to the Honorable Robert R. Beezer of the United States Court of Appeals for the Ninth Circu...

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Format:HardcoverDimensions:384 pages, 9.25 × 6.13 × 0.98 inPublished:April 28, 2009Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195372611

ISBN - 13:9780195372618

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Table of Contents

Prologue: Bad Luck1. The Enigmatic Amendment2. The Origins of the Ninth Amendment3. Debating the Ninth Amendment4. On Text and Original Understanding5. The Eleventh Amendment as a Retained Right of the People6. Federalism and Liberty, 1794-18037. The Ninth Amendment and the Marshall Court8. Slavery and the Impact of the Fourteenth Amendment9. The Fall of the Original Ninth Amendment and the Rise of New Deal Constitutionalism10. Death and Transfiguration: How the Ninth Amendment Got Filed in the Wrong Place11. Guarding the Retained Rights of the PeopleNotesIndex