Academic

Lash on the Ninth, Federalism, and Majoritarianism

By Lawrence Solum

Kurt T. Lash (Loyola Law School Los Angeles) has posted Federalism, Freedom, and the Founders' View of Retained Rights (Stanford Law Review, Vol. 60, 2008) on SSRN. Here is the abstract:

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review (forthcoming 2008), I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits with the available historical evidence and reconciles the people of the Ninth with the people of the Tenth Amendment. At the invitation of the Stanford Law Review, Ninth Amendment scholar Professor Randy Barnett has now written a response to this piece. In his essay, Kurt Lash's Majoritarian Difficulty, Professor Barnett characterizes my approach to the Ninth Amendment as majoritarian and argues that the Ninth was intended to reflect the distinctly antimajoritarian views of Madison and the First Congress. Instead of protecting the collective rights of the people in the states, Barnett maintains that Ninth Amendment protects only individual rights and cites as critical support the opposition views of the antifederalist Virginia Senate and the majority opinion in Chisholm v. Georgia.

In this brief reply essay, I clarify the distinction between individual, majoritarian and collective rights and explain how all were likely among the rights retained by the people under the Ninth Amendment. This federalist (as opposed to majoritarian) reading of the Ninth Amendment was expressly embraced by participants in the drafting and ratification of the Ninth Amendment, in particular James Madison, the drafter of the Amendment. In a major speech which he delivered while the Ninth Amendment remained pending in the states (a speech which Barnett does not mention), Madison explained how the Ninth Amendment was drafted in response to concerns emanating from the state ratifying conventions and that both the Ninth and Tenth Amendments were intended to preserve the retained powers and rights of the people in the states. Although the Chisholm majority presented a distinctly non-federalist vision of the people, had this been the common reading of the Ninth and Tenth in 1791, this would have ensured the defeat of the Bill of Rights - an outcome Virginia antifederalists desperately but unsuccessfully sought to achieve.

This is Lash's reply to Randy Barnett's Kurt Lash's Majoritarian Difficulty, also forthcoming in the Stanford Law Review.  I read both pieces in draft, and both are highly recommended.

Full post as published by Legal Theory Blog on January 23, 2008 (boomark / email).