基本説明
Drawing upon a wide range of primary sources, most never before included in any book on the Ninth Amendment of the Bill of Rights, Kurt T. Lash recovers the lost history of the Ninth Amendment and explores how its original understanding can be applied to protect the people's retained rights today.
Full Description
The most important aspect of The Lost History of the Ninth Amendment is its presentation of newly uncovered historical evidence which calls into question the currently presumed meaning and application of the Ninth Amendment. The evidence not only challenges the traditional view regarding the original meaning of the Ninth Amendment, it also falsifies the common assumption that the Amendment lay dormant prior to the Supreme Court's "discovery" of the clause in Griswold v. Connecticut.
As a history of the Ninth Amendment, the book recapitulates the history of federalism in America and the idea that local self-government is a right retained by the people. This issue has particular contemporary salience as the Supreme Court considers whether states have the right to authorize medicinal use of marijuana, refuse to assist the enforcement of national laws like the Patriot Act, or regulate physician-assisted suicide. The meaning of the Ninth Amendment has played a key role in past Senate confirmation hearings for Supreme Court justices and the current divide on the Court regarding the meaning of the Ninth Amendment makes it likely the subject will come up again during the next set of hearings.
Contents
Acknowledgements ; Prologue: Bad Luck ; Chapter I: The Enigmatic Amendment ; Griswold and Justice Goldberg ; Avoiding Lochner ; The Modern Restoration of Unenumerated Rights ; The Conundrums of the Consensus View ; Chapter II: The Origins of the Ninth Amendment ; Introduction: James Madison and His Speech on the Bank of the United States ; The Traditional Account of the Ninth ; The Need to Control the Interpretation of Federal Power ; The Declarations and Proposals of the State Ratifying Conventions ; Madison's Original Draft of the Ninth Amendment ; The Altered Final Language of the Ninth Amendment ; The People's Retained Rights ; Chapter III: Ratifying the Ninth Amendment ; Roger Sherman's Draft Bill of Rights ; Reaction to the Final Draft: The Virginia Debates ; The Concerns of Edmund Randolph ; The Letters of Hardin Burnley and James Madison ; The Virginia Senate Report ; Explaining the Ninth Amendment: Madison's Speech on the Bank of the United States ; The Significance of Madison's Speech ; Chapter IV: The Retained Rights of the People: The Ninth Amendment in Its First Decade ; Introduction: John Page's Battle Against the Alien and Sedition Acts ; The Twin Guardians of Federalism-The Ninth and Tenth Amendments ; St. George Tucker's View of the Constitution ; The Rule of Strict Construction ; Popular Sovereignty and the Ninth Amendment ; Natural Rights and the Original Ninth Amendment: Samuel Chase & Calder v. Bull ; The Alien and Sedition Acts ; The Federalist Party and National Power ; The Ninth Amendment and the Preservation of Individual Liberty: John Page's Remonstrance ; The Rise of the Tenth Amendment ; The Virginia and Kentucky Resolutions ; Madison's Celebrated Report ; The Revolution of 1800 and the Rise of the Tenth Amendment ; Chapter V: Chief Justice John Marshall and the Ninth Amendment ; Introduction: Thomas Emmet's Argument in Gibbons v. Ogden ; Exclusive vs. Concurrent Federal Power ; Defining the Concurrent Powers of the States ; The Lost Opinion in Houston v. Moore ; The Marshall Court and National Power ; Marshall's Nationalism: McCulloch v. Maryland and Gibbons v. Ogden ; The Supreme Court Under Fire ; Defending John Marshall: Story's Commentaries ; Marshall's Retirement and the Return of Strict Construction ; The Bad Luck of Losing John Marshall ; Chapter VI: Guilt by Association: The Ninth Amendment, Slavery, and the Impact of the Fourteenth Amendment ; Introduction: The Secession Speech of Judah P. Benjamin ; The Ninth Amendment and the Antebellum Concept of Liberty ; Slavery and the Ninth Amendment ; The Fourteenth Amendment and the Issue of Incorporation ; The Silence of the Abolitionists ; States' Rights and Abolition ; The Legal Tender Cases ; The Slaughterhouse Cases: Preserving the Rule of Construction ; Hans v. Louisiana: The Ninth and Eleventh Amendments ; Reconciling the Ninth and Fourteenth Amendments ; Chapter VII: The Fall of the Ninth Amendment: The New Deal Restoration of John Marshall's Constitution ; Introduction: The Speech of Senator Pat McCarran, Anticommunist, Anti-New Dealist, Anti-Desegregationist and All- ; Around Unsavory Character-More Bad Luck ; The Ninth and Tenth Amendments in the Progressive Era ; The Rule of Construction and the New Deal ; The Rule Abandoned: The Ninth and Tenth Amendments as Truisms ; The Last Days of the Historic Ninth Amendment: Bute v. Illinois and the Issue of Incorporation ; Chapter VIII: Death and Transfiguration: The Return of the Ninth Amendment-and How Its History Got Filed in the Wrong Box ; The Modern Reading of Retained Rights and Reserved Powers ; Bennett Patterson's Book ; Griswold v. Connecticut ; Turning the Ninth Against the Tenth: Roe v. Wade and Modern Substantive Due Process ; The Return of Federalism: The Rehnquist Court and the Tenth Amendment ; Losing History: Misplaced, Mistaken, and Just Plain Missed ; Chapter IX: Enforcing the People's Retained Right to Local Self-Government ; Popular Sovereignty and Comprehensive Originalism ; Federalism as a Retained Right ; Madison's Rules of Constitutional Construction ; Preserving the Retained Rights of the People ; The Modern Court's Federalism Jurisprudence ; Notes ; Index
