36 Pages Posted: 2 Jan 2008 Last revised: 10 Jan 2008
Kurt Last believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay I explain why his majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a 4 to 1 majority of the Supreme Court in its first major constitutional decision. And it is contrary to the individualist interpretation of the Ninth Amendments by the one source he cites who actually uses the word collective: St. George Tucker. In sum, the collectivist interpretation of the phrase others retained by the people is anachronistic - a projection of contemporary majoritarianism onto a text which is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.
Keywords: constitution, ninth amendment, rights, fourteenth amendmentment, unenumerated rights
Suggested Citation: Suggested Citation
Barnett, Randy E., Kurt Lash's Majoritarian Difficulty. Stanford Law Review, Vol. 60, 2008; Georgetown Public Law Research Paper No. 1079104. Available at SSRN: https://ssrn.com/abstract=1079104