Academic

Legal Theory Bookworm

By Lawrence Solum

The Legal Theory Bookworm recommends The Lost History of the Ninth Amendment by Kurt T Lash.  Here is a 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.

And from the reviews:

"Kurt Lash has made a major contribution to the historical debate over the meaning of the Ninth Amendment. Everyone interested in this crucial and ongoing debate should read this book."
--Michael Kent Curtis, Wake Forest School of Law

"Kurt Lash's book explores the unexamined and overlooked dimensions to how the Ninth Amendment found its way into the Federal Constitution and, arguably, had a 'life' long before its 'discovery' by the modern Supreme Court in the 1960's. He also recognizes the collective aspect of rights, which is frequently overlooked in the traditional focus of individual rights. The argument hinging on the interpretation and understanding of the Constitution alone is quite complicated, but Professor Lash presents a clear argument with solid research that helps stimulates a re-thinking of the conventional treatment of the Ninth Amendment."
--Christian G. Fritz, University of New Mexico School of Law

"The Lost History of the Ninth Amendment is magnificent. The Ninth is at the center of important debates about constitutional method and substance. Lash's work on this enigmatic provision has already provoked an explosion of new scholarship - for good reasons. Lash has done something rare and extraordinary - uncovering genuinely new historical evidence about the origins and early interpretation of the Ninth. Lash also has a powerful and original theory of the Ninth's purpose - emphasizing the political powers of 'We the People' and rediscovering the amendment as a lynchpin of popular sovereignty. Lash's book will be debated for years to come."
--Lawrence Solum, University of Illinois College of Law

Full post as published by Legal Theory Blog on March 07, 2009 (boomark / email).