New Kurt Lash and Randy Barnett Articles

On balance, I think Kurt Lash has gotten the better of Randy Barnett in their ongoing debate over the meaning of the Ninth Amendment. I see that Professor Lash has posted his latest effort on that amendment, A Textual-Historical Theory of the Ninth Amendment (forthcoming in the Stanford Law Review), on SSRN:

Despite the lavish attention paid to the Ninth as a possible source of unenumerated rights, surprisingly little attention has been paid to actual text. Although often raised in opposition to reading the Due Process Clause as incorporating only textual rights, the text of the Ninth has nothing to do with interpretation of enumerated rights such as those contained in the Fourteenth Amendment. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. In fact, the standard theory of the Ninth places the text in considerable tension with that of the Tenth. Although both the Ninth and Tenth Amendments close with the same reference to “the people,” most contemporary scholars and courts treat the same term in the two amendments as having opposite meanings, with the Ninth referring to a single national people and Tenth referring to the people in the several states. Finally, recent historical evidence reveals that for more than one hundred years after its enactment, courts applied the Ninth Amendment in a manner that preserved the autonomous rights of the states. This seems out of sync with a text that speaks only of the retained rights of the people, not the states.

This article addresses these and other textual mysteries of the Ninth Amendment. The over-all effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution such as the Tenth and Fourteenth Amendments. Particular attention is paid to the meaning of “deny or disparage,” the distinction between “rights retained” and “rights assigned,” and the relationship between rights retained by the people under the Ninth Amendment, and powers reserved to the people under the Tenth. The article closes by sketching a textual-historical approach to judicial enforcement of the Ninth Amendment in a manner that reconciles the text with the Fourteenth Amendment.

That said, I enjoy reading Professor Barnett's pieces. Coming at issues with a distinct perspective, he often illuminates them from unexpected angles.

I see that Professor Barnett also has a new article up on SSRN: The People or the State? Chisholm v. Georgia and Popular Sovereignty, the abstract of which is as follows:

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court's individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications.