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
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.
"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
