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Five The Eleventh Amendment as a Retained Right of the People

From: The Lost History of the Ninth Amendment

Kurt T. Lash

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 18 May 2021

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.

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