The lost jurisprudence of the ninth amendment

Kurt T. Lash

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It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected by Justice Arthur Goldberg in the 1965 case, Griswold v. Connecticut. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the right of the states to secede from the Union, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the lost history of the Ninth Amendment, The Lost Jurisprudence takes a comprehensive look at the Ninth Amendment jurisprudence that flourished from the early nineteenth to the mid-twentieth century. Though long assumed never to have received significant attention from the Supreme Court, the first discussion and application of the Ninth Amendment was, in fact, by Supreme Court Justice and constitutional treatise author Joseph Story. In a passage unnoticed since the nineteenth century, Justice Story interpreted and applied the Ninth Amendment precisely the way James Madison and the state ratifying conventions intended - as a rule of construction preserving the retained right of local self-government. Ignored by the framers of the Fourteenth Amendment, the Ninth Amendment and its attendant rule of construction were deployed by courts throughout the nineteenth and early twentieth centuries to limit the interpretation of federal powers and rights. Ubiquitously paired with the Tenth Amendment, the Ninth suffered the same fate as the Tenth at the time of the New Deal, when both were rendered mere "truisms" in the face of expansive constructions of federal power. By 1965, the Ninth was assumed to exist in a doctrinal and historical vacuum, an assumption that no one has questioned until now.

Original languageEnglish (US)
Pages (from-to)597-716
Number of pages120
JournalTexas Law Review
Issue number3
StatePublished - Feb 2005

ASJC Scopus subject areas

  • Law


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