The Lost History of the Ninth Amendment

Kurt Lash is Professor of Law & 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 Circuit. Professor Lash has published numerous journal articles on constitutional history and he is currently Chair-Elect of the Association of American Law Schools Section on 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 ; Chapter IX: Enforcing the People's Retained Right to Local Self-Government ; Popular Sovereignty and Comprehensive Originalism ; Federalism as a Retained Right ; Madison's Rules of Constitutional Construction ; Preserving the Retained Rights of the People ; The Modern Court's Federalism Jurisprudence ; Notes ; Index

"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 quitecomplicated, 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 theoryof 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