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 Courts discovery of the clause in Griswold v.
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. Constitutional Defense.
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Most recent scholarly interpretations of the Ninth Amendment dwell on the "rights retained by the people" language. The key words, however, are "shall not be construed. The Select Committee distilled Madison's language to the text that was sent to the states for ratification:. In the Virginia House of Representatives, Edmund Randolph objected to the new phrasing and preferred wording that would have limited "extending the powers of Congress" rather than protecting rights "retained by the people.
Madison continued to maintain that that was the central meaning of the Ninth Amendment throughout his life, and his interpretation was seconded by most commentators of the time.
Civil Rights in the United States
The courts have not had much occasion to construe the Ninth Amendment, but it seems clear that from the time of its ratification until the New Deal, the Ninth Amendment was understood as a principle limiting the construction of federal power to the detriment of the states. Nevertheless, it was not clear how much bite the Ninth Amendment's interpretive rule had. In some important cases, such as McCulloch v. Maryland , the Court ignored the Ninth Amendment altogether.
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And in the Legal Tender Cases , the Court openly declared that the limited nature of the Bill of Rights demonstrated that Congress had unenumerated powers, a position directly at odds with what every commentator affirms the Ninth Amendment was at the very least designed to prevent. After , the Supreme Court abandoned the effort to keep Congress within the bounds of its delegated powers, and even as a background principle protecting the traditional powers of the states and the people of the states, the Ninth Amendment fell into desuetude.
In , however, in Griswold v. Connecticut , several Justices of the Court revived the amendment, not in its traditional sense, but rather as a source for an "unenumerated rights" doctrine. The current judicial view of the Ninth Amendment is in some ways closer to the libertarian interpretation than to the traditional view, as when the Court protects the right to an abortion or to same-sex relations under an "autonomy" rationale, Planned Parenthood of Southeastern Pennsylvania v. Casey , Lawrence v. Texas , even though the Court has not enforced the economic rights that libertarians believe the Ninth Amendment was designed originally to protect.
Opposing the use of the Ninth Amendment as an invitation for the Court to find new rights, a number of Justices, such as Justice Antonin Scalia, adhere to the traditional interpretation, reading the Ninth Amendment as designed to prevent the expansion of federal power seemingly implied by the listing of prohibitions within the Bill of Rights.
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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States The Heritage Guide to The Constitution. Facebook Twitter Share.
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Lost History of the Ninth Amendment - E-bok - Kurt T Lash () | Bokus
Maryland, 17 U. Connecticut, U. Casey, U. Moore, 18 U. Texas, U. Amendment X. Preamble Articles 1. Legislative 2.
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