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Author: Anthony B. Sanders
Publisher: University of Michigan Press
ISBN: 0472903497
Category : Political Science
Languages : en
Pages : 215
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Book Description
Listing every right that a constitution should protect is hard. American constitution drafters often list a few famous rights such as freedom of speech, protection against unreasonable searches and seizures, and free exercise of religion, plus a handful of others. However, we do not need to enumerate every liberty because there is another way to protect them: an "etcetera clause." It states that there are other rights beyond those specifically listed: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Yet scholars are divided on whether the Ninth Amendment itself actually does protect unenumerated rights, and the Supreme Court has almost entirely ignored it. Regardless of what the Ninth Amendment means, two-thirds of state constitutions have equivalent provisions, or "Baby Ninth Amendments," worded similarly to the Ninth Amendment. This book is the story of how the "Baby Ninths" came to be and what they mean. Unlike the controversy surrounding the Ninth Amendment, the meaning of the Baby Ninths is straightforward: they protect individual rights that are not otherwise enumerated. They are an "etcetera, etcetera" at the end of a bill of rights. This book argues that state judges should do their duty and live up to their own constitutions to protect the rights "retained by the people" that these "etcetera clauses" are designed to guarantee. The fact that Americans have adopted these provisions so many times in so many states demonstrates that unenumerated rights are not only protected by state constitutions, but that they are popular. Unenumerated rights are not a weird exception to American constitutional law. They are at the center of it. We should start treating constitutions accordingly.
Author: Anthony B. Sanders
Publisher: University of Michigan Press
ISBN: 0472903497
Category : Political Science
Languages : en
Pages : 215
Get Book Here
Book Description
Listing every right that a constitution should protect is hard. American constitution drafters often list a few famous rights such as freedom of speech, protection against unreasonable searches and seizures, and free exercise of religion, plus a handful of others. However, we do not need to enumerate every liberty because there is another way to protect them: an "etcetera clause." It states that there are other rights beyond those specifically listed: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Yet scholars are divided on whether the Ninth Amendment itself actually does protect unenumerated rights, and the Supreme Court has almost entirely ignored it. Regardless of what the Ninth Amendment means, two-thirds of state constitutions have equivalent provisions, or "Baby Ninth Amendments," worded similarly to the Ninth Amendment. This book is the story of how the "Baby Ninths" came to be and what they mean. Unlike the controversy surrounding the Ninth Amendment, the meaning of the Baby Ninths is straightforward: they protect individual rights that are not otherwise enumerated. They are an "etcetera, etcetera" at the end of a bill of rights. This book argues that state judges should do their duty and live up to their own constitutions to protect the rights "retained by the people" that these "etcetera clauses" are designed to guarantee. The fact that Americans have adopted these provisions so many times in so many states demonstrates that unenumerated rights are not only protected by state constitutions, but that they are popular. Unenumerated rights are not a weird exception to American constitutional law. They are at the center of it. We should start treating constitutions accordingly.
Author: Randy E. Barnett
Publisher: University Press of America
ISBN:
Category : Law
Languages : en
Pages : 560
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Book Description
A collection of seminal writings on the history and meaning of the Ninth Amendment, reflecting a diverse cross-section of scholarly opinion. From the Introduction by Randy E. Barnett: I suggest that the failure to find a 'general right of freedom' in the Constitution is connected to a general inabi
Author: Randy E. Barnett
Publisher: Princeton University Press
ISBN: 0691159734
Category : Law
Languages : en
Pages : 448
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Book Description
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.
Author: Kurt T. Lash
Publisher: Oxford University Press
ISBN: 0190451742
Category : Law
Languages : en
Pages : 394
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Book Description
The Ninth Amendment has had a remarkably robust history, playing a role in almost every significant constitutional debate in American history, including the controversy over the Alien and Sedition Acts, the struggle over slavery, and the constitutionality of the New Deal. Until very recently, however, this history has been almost completely lost due to a combination of historical accident, mistaken assumptions, and misplaced historical documents. Drawing upon a wide range of primary sources, most never before included in any book on the Ninth Amendment or 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. 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.
Author: Wayne D. Moore
Publisher: Princeton University Press
ISBN: 9780691002446
Category : Law
Languages : en
Pages : 312
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Book Description
American constitutionalism rests on premises of popular sovereignty, but questions remain about how the "people" and their rights and powers fit into the constitutional design. In a book that will radically reorient thinking about the Constitution, political scientist Wayne Moore offers new insights into central problems of constitutional history, theory, and law.
Author: Laurence Tribe
Publisher: Macmillan
ISBN: 0805099093
Category : Law
Languages : en
Pages : 416
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Book Description
An assessment of how the Supreme Court under Chief Justice John Roberts is significantly influencing the nation's laws and reinterpreting the Constitution includes in-depth analysis of recent rulings and their implications.
Author: Akhil Reed Amar
Publisher: Random House
ISBN: 1588364879
Category : History
Languages : en
Pages : 672
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Book Description
In America’s Constitution, one of this era’s most accomplished constitutional law scholars, Akhil Reed Amar, gives the first comprehensive account of one of the world’s great political texts. Incisive, entertaining, and occasionally controversial, this “biography” of America’s framing document explains not only what the Constitution says but also why the Constitution says it. We all know this much: the Constitution is neither immutable nor perfect. Amar shows us how the story of this one relatively compact document reflects the story of America more generally. (For example, much of the Constitution, including the glorious-sounding “We the People,” was lifted from existing American legal texts, including early state constitutions.) In short, the Constitution was as much a product of its environment as it was a product of its individual creators’ inspired genius. Despite the Constitution’s flaws, its role in guiding our republic has been nothing short of amazing. Skillfully placing the document in the context of late-eighteenth-century American politics, America’s Constitution explains, for instance, whether there is anything in the Constitution that is unamendable; the reason America adopted an electoral college; why a president must be at least thirty-five years old; and why–for now, at least–only those citizens who were born under the American flag can become president. From his unique perspective, Amar also gives us unconventional wisdom about the Constitution and its significance throughout the nation’s history. For one thing, we see that the Constitution has been far more democratic than is conventionally understood. Even though the document was drafted by white landholders, a remarkably large number of citizens (by the standards of 1787) were allowed to vote up or down on it, and the document’s later amendments eventually extended the vote to virtually all Americans. We also learn that the Founders’ Constitution was far more slavocratic than many would acknowledge: the “three fifths” clause gave the South extra political clout for every slave it owned or acquired. As a result, slaveholding Virginians held the presidency all but four of the Republic’s first thirty-six years, and proslavery forces eventually came to dominate much of the federal government prior to Lincoln’s election. Ambitious, even-handed, eminently accessible, and often surprising, America’s Constitution is an indispensable work, bound to become a standard reference for any student of history and all citizens of the United States.
Author: Jay S. Bybee
Publisher: Bloomsbury Publishing USA
ISBN: 1567509800
Category : Law
Languages : en
Pages : 308
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Book Description
American judges and legal scholars have long misunderstood the intended meaning of the Ninth Amendment and its relationship to the Tenth. Because of misinterpretation, the Ninth and Tenth Amendments have not been used to fulfill their original purposes. The limited and unlimited powers of the federal government have been shaped greatly by that error. In this book the authors clarify the actual meaning of the Ninth Amendment and its connection to the Tenth Amendment in order to provide a clear understanding of the full potential of the two amendments. Historical and contemporary details are included to provide an appreciation of the intended purpose of the amendments.
Author: Jamal Greene
Publisher: Mariner Books
ISBN: 1328518116
Category : Business & Economics
Languages : en
Pages : 341
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Book Description
An eminent constitutional scholar reveals how our approach to rights is dividing America, and shows how we can build a better system of justice.
Author: Steven G. Calabresi
Publisher: Regnery Publishing
ISBN: 1596980508
Category : Political Science
Languages : en
Pages : 370
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Book Description
What did the Constitution mean at the time it was adopted? How should we interpret today the words used by the Founding Fathers? In ORIGINALISM: A QUARTER-CENTURY OF DEBATE, these questions are explained and dissected by the very people who continue to shape the legal structure of our country. Inside you'll find: *A foreword by Justice Antonin Scalia and speeches by former attorney general Edwin Meese III, Justice William Brennan, Judge Robert H. Bork, and President Ronald Reagan *Transcripts from panel discussions and debates engaging some of the brightest legal minds of our time in frank, open discussions about the original meaning of the Constitution of the United States and its impact on the rule of law in our country *A debate on the original meaning of the Commerce, Spending, and Necessary and Proper Clauses *Concluding thoughts by Theodore Olson, forty-second solicitor general of the United States and a fellow at both the American College of Trial Lawyers and the American Academy of Appellate Lawyers. ORIGINALISM: A QUARTER-CENTURY OF DEBATE is a lively and fascinating discussion of an issue that has occupied the greatest legal minds in America, and one that continues to elicit strong reactions from both those who support and those who oppose the rule of law. Steven G. Calabresi, co-founder of the Federalist Society and professor of law at Northwestern University School of Law, has compiled an impressive collection of speeches, panel discussions, and debates from some of the greatest and most prominent legal experts of the last twenty-five years.
