The Lost History of the Ninth Amendment PDF
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Th e Lost History of the Ninth Amendment This page intentionally left blank Th e Lost History of the Ninth Amendment kurt t. lash 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Copyright © 2009 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. _____________________________________________ 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 Note to Readers Th is publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confi rm that the information has not been aff ected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com To the memory of my father, Louis Henry Lash, Jr. This page intentionally left blank 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 This page intentionally left blank 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
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