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The Lost History of the Ninth Amendment$
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Kurt T. Lash

Print publication date: 2009

Print ISBN-13: 9780195372618

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780195372618.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 21 September 2021

The Eleventh Amendment as a Retained Right of the People

The Eleventh Amendment as a Retained Right of the People

(p.95) Five The Eleventh Amendment as a Retained Right of the People
The Lost History of the Ninth Amendment

Kurt T. Lash

Oxford University Press

This chapter focuses on the Eleventh Amendment. The amendment represented the first act of popular sovereignty under the new Constitution, and it demanded that federal courts respect the rule of strict construction promised by the Federalists and declared in the Bill of Rights. The history recounted in this chapter provides important independent support for the idea that the founding generation understood “the people” of the Ninth and Tenth Amendments to refer to the sovereign people in the states—people who had delegated away important powers with the adoption of the Constitution, but who nevertheless retained their sovereign existence after 1787. This understanding of retained sovereignty included important assumptions about the proper construction of delegated federal power, including the delegated power of federal courts.

Keywords:   Eleventh Amendment, Constitution, Ninth Amendment, popular sovereignty, Bill of Rights

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