The Lost History of the Ninth Amendment

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Overview

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has been almost completely lost due to a combination of historical accident, mistaken assumptions, and misplaced historical documents.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 ...

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Overview

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has been almost completely lost due to a combination of historical accident, mistaken assumptions, and misplaced historical documents.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 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.

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Editorial Reviews

From the Publisher
"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

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Product Details

  • ISBN-13: 9780195372618
  • Publisher: Oxford University Press
  • Publication date: 3/27/2009
  • Pages: 394
  • Sales rank: 1,375,264
  • Product dimensions: 6.40 (w) x 9.40 (h) x 4.50 (d)

Meet 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.

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Sort by: Showing 1 Customer Reviews
  • Posted June 4, 2012

    Must Read

    This is without question, the most important piece of constitutional scholarship in my lifetime. Kurt Lash exposes how the true meaning of the 9th Amendment has been systimatically erased from our organic law and transformed into something it was never intended to mean. Lash uses original documentation and precise analysis to demonstrate that the true meaning of the 9th is as a rule of construction requiring that all powers/rights conferred by the constitution to the federal government be strictly construed so as not to deny or disparge the powers/rights retained by the people as expressed through the individual states and local government. Lash uncovers, in irrefutable detail, the 9th's lost history: How the Marshal court utterly ignored the 9th; how the 9th was re-discovered and enforced thoughout the remainder of the 9th and into the 20th centuries; how the New Deal era again ignored the 9th in order to give judicial sanction to the expansion of the federal government and, finally, more contemporary attempts to transform the 9th into grounds for a libertarian interpretation that protects only individual rights and not the powers of th states. This is must reading for any one interested in the real meaning of the 9th amendment, especially for those-like me-who believe a re-discovery of our written constitutional text is an absolute necessity to achieving a true re-founding of our republic based on principles of federalism and local self government.

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