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Taking History Seriously: Reflections on a Critique of Amar's Treatment of the Ninth Amendment in His Work on the Bill of Rights

94 Pages Posted: 1 Jul 2009 Last revised: 2 Jul 2009

Thomas McAffee

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: March 4, 2009

Abstract

Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers -- and hence the collective right of the people of the states to make decisions about government, including the extent to which rights were to be protected. The modern debate over the original meaning of the Ninth Amendment, moreover, reflects and embodies that the debate concerns the appropriate reading of a positivist Constitution.

Keywords: Ninth Amendment, Tenth Amendment, textualism, right to alter or abolish government, Articles of Confederation, the Bill of Rights, Necessary and Proper Clause, freedom of the press, federalism, Alien and Sedition Acts, The National Bank Acts

JEL Classification: K10

Suggested Citation

McAffee, Thomas, Taking History Seriously: Reflections on a Critique of Amar's Treatment of the Ninth Amendment in His Work on the Bill of Rights (March 4, 2009). UNLV William S. Boyd School of Law Legal Studies Research Paper No. 09-09. Available at SSRN: https://ssrn.com/abstract=1428122 or http://dx.doi.org/10.2139/ssrn.1428122

Thomas McAffee (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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