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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: 25 September 2021

The Ninth Amendment and the Marshall Court

The Ninth Amendment and the Marshall Court

(p.173) Seven The Ninth Amendment and the Marshall Court
The Lost History of the Ninth Amendment

Kurt T. Lash

Oxford University Press

This chapter continues the discussion of the history of the Ninth Amendment and eventually takes it to the one place where no history of it can be found—the judicial opinions of Chief Justice John Marshall. It is argued that different people used the Ninth Amendment in different ways. Some read the amendment as significantly restricting federal power; others insisted that the amendment placed few if any constraints on federal power. But these are differences of degree, not kind. Every court and commentator who took a position on the Ninth Amendment in the initial decades of the Constitution—whether Federalist or Anti-Federalist or Democratic-Republican, nationalist or states' rightist, drafter or ratifier—all described the Ninth as echoing the same federalist principles as the Tenth. Rather than considering the original meaning of the Ninth Amendment, the chapter focuses on what happened to the original meaning of the Ninth Amendment.

Keywords:   Ninth Amendment, Constitution, John Marshall, federalism, original meaning

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