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Seven The Ninth Amendment and the Marshall Court

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: 08 May 2021

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.

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