The Inescapable Federalism of the Ninth Amendment
Kurt T. Lash
University of Illinois College of Law
Loyola-LA Legal Studies Paper No. 2007-17
Iowa Law Review, Forthcoming
Over the past two decades, the most influential work on the Ninth Amendment has been that of libertarian scholar Randy Barnett. Over a series of articles and books, Barnett has presented the Ninth as a provision originally intended to preserve individual natural rights. Recently uncovered historical evidence, however, suggests that the Ninth originally limited federal power in order to preserve the right to local self-government. I presented this evidence in two articles published by the Texas Law Review, the first dealing with the original meaning of the Ninth Amendment, and the second dealing with a heretofore lost jurisprudence of the Ninth from its adoption through the New Deal. Recognizing the challenge this evidence poses to his libertarian theory of the Constitution, Randy Barnett has now published his response to my work. He concludes that although the evidence supports my federalist model of the original Ninth Amendment, it also supports his libertarian reading of the Ninth. Barnett also argues that even if the original Ninth bound only the federal government, the same set of rights protected by the Ninth were applied against the states in the adoption of the Fourteenth Amendment.
In this article, I clarify the distinction between the federalism and libertarian models of the Ninth Amendment. I conclude that the two models are in critical ways incompatible, and that the historical evidence properly understood significantly undermines Barnett's libertarian reading of the Ninth and Fourteenth Amendments. In addition to addressing those aspects of the historical record which form the crux of the dispute between Barnett and myself, I also present newly discovered evidence of the original meaning of the Ninth which further supports the federalist model of the Amendment.
Number of Pages in PDF File: 70
Date posted: December 21, 2006 ; Last revised: December 14, 2007
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