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The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0010
Subject:
Law, Constitutional and Administrative Law

This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth ... More


The Ninth Amendment and the Marshall Court

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.07
Subject:
Law, Constitutional and Administrative Law

This chapter continues the discussion of the history of the Ninth Amendment and eventually takes it to the one place where no history of it can be found—the judicial opinions of Chief Justice John ... More


Death and Transfiguration: How the Ninth Amendment Got Filed in the Wrong Place

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.10
Subject:
Law, Constitutional and Administrative Law

This chapter discusses how the transfigured Ninth Amendment, although used in support of a broad conception of individual freedom, has become a far smaller provision than that envisioned by its ... More


Slavery and the Impact of the Fourteenth Amendment

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.08
Subject:
Law, Constitutional and Administrative Law

This chapter discusses the use of the Ninth Amendment in the years preceding the Civil War and the potential impact of the Reconstruction Amendments, particularly the Fourteenth Amendment. It seeks ... More


On Text and Historical Understanding

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.04
Subject:
Law, Constitutional and Administrative Law

This chapter addresses just how the federalist vision of the Ninth Amendment presented in Chapters 2 and 3 fits with the actual text of the amendment and how the amendment fits alongside the Tenth ... More


The Origins of the Ninth Amendment

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.02
Subject:
Law, Constitutional and Administrative Law

This chapter begins by presenting the most commonly told story about the historical Ninth Amendment. It argues that the Ninth Amendment did not emerge unsought out of the unique mind of James ... More


Guarding the Retained Rights of the People

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.11
Subject:
Law, Constitutional and Administrative Law

Assuming that an accurate understanding of U.S. constitutional history can assist us in our effort to understand and apply our Constitution today, this chapter addresses the question of whether ... More


Federalism and Liberty, 1794–1803

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.06
Subject:
Law, Constitutional and Administrative Law

This chapter focuses on the Alien and Sedition Acts. The present chapter and the previous chapter on the Eleventh Amendment illustrate something generally missed—or misrepresented—about republican ... More


The Presumption of Liberty: Protecting Rights without Listing Them

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0011
Subject:
Law, Constitutional and Administrative Law

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever ... More


The Eleventh Amendment as a Retained Right of the People

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195372618
eISBN:
9780199871742
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195372618.003.05
Subject:
Law, Constitutional and Administrative Law

This chapter focuses on the Eleventh Amendment. The amendment represented the first act of popular sovereignty under the new Constitution, and it demanded that federal courts respect the rule of ... More


Restoring the Lost Constitution

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0015
Subject:
Law, Constitutional and Administrative Law

This concluding chapter argues that the original meaning of the entire Constitution, as amended, is much more libertarian than the one selectively enforced by the Supreme Court. It cites the evidence ... More


Why Care What the Constitution Says?

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0001
Subject:
Law, Constitutional and Administrative Law

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the ... More


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