The Lost History of the Ninth Amendment

395 Pages·2009·2.04 MB·English

by  Kurt T. Lash

Th e Lost History of
the Ninth Amendment
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Th e Lost History of
the Ninth Amendment
kurt t. lash
1
1
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Library of Congress Cataloging-in-Publication Data
Lash, Kurt T.
Th e lost history of the Ninth Amendment / Kurt T. Lash.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-537261-8 ((hardback) : alk. paper) 1. United States.
Constitution. 9th Amendment—History. 2. Civil rights—United States.
3. Constitutional law—United States. I. Title.
KF45589th .L37 2009
342.7308'5—dc22
2008044050
_____________________________________________
1 2 3 4 5 6 7 8 9
Printed in the United States of America on acid-free paper
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To the memory of my father,
Louis Henry Lash, Jr.
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Contents
Acknowledgments ix
Preface xiii
1 Th e Enigmatic Amendment 1
2 Th e Origins of the Ninth Amendment 13
3 Debating the Ninth Amendment 39
4 On Text and Historical Understanding 71
5 Th e Eleventh Amendment as a Retained
Right of the People 95
6 Federalism and Liberty, 1794–1803 139
7 Th e Ninth Amendment and the Marshall Court 173
8 Slavery and the Impact of the Fourteenth Amendment 227
9 Th e Fall of the Original Ninth Amendment and
the Rise of New Deal Constitutionalism 269
10 D eath and Transfi guration: How the Ninth Amendment
Got Filed in the Wrong Place 319
11 G uarding the Retained Rights of the People 343
Table of Cases 361
Index 367
vii
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Acknowledgments
i can still recall sitting in my living room chair on a warm fall evening a
few years ago and suddenly realizing that Justice Joseph Story’s obscure ref-
erence to the “eleventh amendment” in Houston v. Moore might actually
involve an early discussion of the Ninth Amendment—the fi rst such refer-
ence in a United States Supreme Court opinion. Th at single realization led to
a cascade of additional discoveries regarding the lost history of the Ninth
Amendment, all of which are chronicled in this book.
For help in putting this evidence into its proper historical context, I am
indebted to the comments and suggestions on diff erent aspects of this
project by historians Stuart Banner, Saul Cornell, Richard Ellis, Mark
Killenbeck, David Konig, and Gary Rowe. Christian Fritz has long been a
source of guidance and insight, particularly in regard to issues of popular
sovereignty at the time of the founding, and I am especially grateful for his
help with the evidence discussed in Chapter Six. Whatever historical wrong
turns I have made, they are due to my own error and not the counsel of any
of these gifted scholars.
At the University of California, Los Angeles, the College of William &
Mary, the University of Notre Dame, the University of Minnesota, Pepperdine
University, the University of San Diego, and the University of Washington,
participants in faculty workshops graciously read diff erent sections of this
manuscript and their comments helped refi ne, and sometimes change, my
thinking on various matters. I am especially thankful for the insights of
Lawrence Alexander, Amy Barrett, Richard Garnett, Richard Hasen, Heidi
Kitrosser, Clark Lombardi, Karl Manheim, Henry Monaghan, James Pfander,
Stephen Presser, Michael Rappaport, Lawrence Rosenthal, Th eodore Seto,
Steven D. Smith, Stephen F. Smith, and Walter Walsh.
Despite our occasionally divergent views about the founding, my former
teacher Akhil Amar has been an unending source of encouragement and
advice over the years, for which I am deeply grateful. Th e insights of Michael
Kent Curtis on the Fourteenth Amendment and its relationship to the original
ix