Home
Law
Legal History
The Lost History of the Ninth Amendment

The Lost History of the Ninth Amendment

Name: The Lost History of the Ninth Amendment
Brand: Oxford University Press USA
SKU: 9780195372618
Price: 1261.00 HKD
Availability: OutOfStock
Author: Kurt T. Lash
ISBN: 9780195372618

By Kurt T. Lash

Oxford University Press USA March 2009

Specifications

ISBN-13: 9780195372618
Publisher: Oxford University Press USA
Publication: March 2009
Format: Hardback , 394 pages
Jurisdiction: U.S. ? Countri(es) for reference only

Details

Lash's work represents a new and innovative approach to the meaning of the Ninth Amendment. The Lost History of the Ninth Amendment promises to be the most important book ever written on the Ninth Amendment and related constitutional history.
The interpretation of the Ninth Amendment that is advanced in Lost History is grounded in the idea of popular sovereignty and is related to Akhil Amar's work on the Bill of Rights. There currently are three approaches to the Ninth Amendement: one emphasizes individual, natural rights; a second emphasizes structure and federalism; and the third approach suggests that the Ninth has no independent legal force. Lost History also has a novel fourth approach that emphasizes the "political rights" of "the people."
Lash's original historical research has revealed a substantial amount of new primary material. Since historical research on the Ninth Amendment is well-trod ground, Lash's discovery of new primary sources has surprised the scholarly community and earned Lash a high measure of respect.

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 the original 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 authorize medicinal 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 Court regarding the meaning of the Ninth Amendment makes it likely the subject will come up again during the next set of hearings.

Readership: This book will target readers interested in American legal and constitutional history and contemporary issues in constitutional law.

Acknowledgements
Prologue: Bad Luck

Chapter I: The Enigmatic Amendment
Griswold and Justice Goldberg
Avoiding Lochner
The Modern Restoration of Unenumerated Rights
The Conundrums of the Consensus View

Chapter II: The Origins of the Ninth Amendment
Introduction: James Madison and His Speech on the Bank of the United States
The Traditional Account of the Ninth
The Need to Control the Interpretation of Federal Power
The Declarations and Proposals of the State Ratifying Conventions
Madison's Original Draft of the Ninth Amendment
The Altered Final Language of the Ninth Amendment
The People's Retained Rights

Chapter III: Ratifying the Ninth Amendment
Roger Sherman's Draft Bill of Rights
Reaction to the Final Draft: The Virginia Debates
The Concerns of Edmund Randolph
The Letters of Hardin Burnley and James Madison
The Virginia Senate Report
Explaining the Ninth Amendment: Madison's Speech on the Bank of the United States
The Significance of Madison's Speech

Chapter IV: The Retained Rights of the People: The Ninth Amendment in Its First Decade
Introduction: John Page's Battle Against the Alien and Sedition Acts
The Twin Guardians of Federalism-The Ninth and Tenth Amendments
St. George Tucker's View of the Constitution
The Rule of Strict Construction
Popular Sovereignty and the Ninth Amendment
Natural Rights and the Original Ninth Amendment: Samuel Chase & Calder v. Bull
The Alien and Sedition Acts
The Federalist Party and National Power
The Ninth Amendment and the Preservation of Individual Liberty: John Page's Remonstrance
The Rise of the Tenth Amendment
The Virginia and Kentucky Resolutions
Madison's Celebrated Report
The Revolution of 1800 and the Rise of the Tenth Amendment

Chapter V: Chief Justice John Marshall and the Ninth Amendment
Introduction: Thomas Emmet's Argument in Gibbons v. Ogden
Exclusive vs. Concurrent Federal Power
Defining the Concurrent Powers of the States
The Lost Opinion in Houston v. Moore
The Marshall Court and National Power
Marshall's Nationalism: McCulloch v. Maryland and Gibbons v. Ogden
The Supreme Court Under Fire
Defending John Marshall: Story's Commentaries
Marshall's Retirement and the Return of Strict Construction
The Bad Luck of Losing John Marshall

Chapter VI: Guilt by Association: The Ninth Amendment, Slavery, and the Impact of the Fourteenth Amendment
Introduction: The Secession Speech of Judah P. Benjamin
The Ninth Amendment and the Antebellum Concept of Liberty
Slavery and the Ninth Amendment
The Fourteenth Amendment and the Issue of Incorporation
The Silence of the Abolitionists
States' Rights and Abolition
The Legal Tender Cases
The Slaughterhouse Cases: Preserving the Rule of Construction
Hans v. Louisiana: The Ninth and Eleventh Amendments
Reconciling the Ninth and Fourteenth Amendments

Chapter VII: The Fall of the Ninth Amendment: The New Deal Restoration of John Marshall's Constitution
Introduction: The Speech of Senator Pat McCarran, Anticommunist, Anti-New Dealist, Anti-Desegregationist and All-
Around Unsavory Character-More Bad Luck
The Ninth and Tenth Amendments in the Progressive Era
The Rule of Construction and the New Deal
The Rule Abandoned: The Ninth and Tenth Amendments as Truisms
The Last Days of the Historic Ninth Amendment: Bute v. Illinois and the Issue of Incorporation

Chapter VIII: Death and Transfiguration: The Return of the Ninth Amendment-and How Its History Got Filed in the Wrong Box
The Modern Reading of Retained Rights and Reserved Powers
Bennett Patterson's Book
Griswold v. Connecticut
Turning the Ninth Against the Tenth: Roe v. Wade and Modern Substantive Due Process
The Return of Federalism: The Rehnquist Court and the Tenth Amendment
Losing History: Misplaced, Mistaken, and Just Plain Missed

About the Author

Kurt Lash holds the James P. Bradley Chair in Constitutional Law at Loyola Law School, Los Angeles. After graduating from Yale Law School, Professor Lash served as Law Clerk to the Honorable Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit. Professor Lash has published numerous journal articles on constitutional history and he has served as the Chair of the Association of American Law Schools Section on Constitutional Law.

Reviews

"Kurt Lash has made a major contribution to the historical debate over the meaning of the Ninth Amendment. Everyone interested in this crucial and ongoing debate should read this book."
--Michael Kent Curtis,
Wake Forest School of Law

"Kurt Lash's book explores the unexamined and overlooked dimensions to how the Ninth Amendment found its way into the Federal Constitution and, arguably, had a 'life' long before its 'discovery' by the modern Supreme Court in the 1960's. He also recognizes the collective aspect of rights, which is frequently overlooked in the traditional focus of individual rights. The argument hinging on the interpretation and understanding of the Constitution alone is quite complicated, but Professor Lash presents a clear argument with solid research that helps stimulates a re-thinking of the conventional treatment of the Ninth Amendment."
--Christian G. Fritz,
University of New Mexico School of Law

"The Lost History of the Ninth Amendment is magnificent. The Ninth is at the center of important debates about constitutional method and substance. Lash's work on this enigmatic provision has already provoked an explosion of new scholarship - for good reasons. Lash has done something rare and extraordinary - uncovering genuinely new historical evidence about the origins and early interpretation of the Ninth. Lash also has a powerful and original theory of the Ninth's purpose - emphasizing the political powers of 'We the People' and rediscovering the amendment as a lynchpin of popular sovereignty. Lash's book will be debated for years to come."
--Lawrence Solum,
University of Illinois College of Law