Chapter

The Fall of the Original Ninth Amendment and the Rise of New Deal Constitutionalism

Kurt T. Lash

in The Lost History of the Ninth Amendment

Published in print March 2009 | ISBN: 9780195372618
Published online September 2009 | e-ISBN: 9780199871742 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780195372618.003.09
 The Fall of the Original Ninth Amendment and the Rise of New Deal Constitutionalism

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This chapter begins with a fairly exhaustive account of the use of the Ninth Amendment in state and federal courts prior to the New Deal. There is nothing new here in terms of theory: one finds the same analysis of the Ninth Amendment already developed in prior chapters repeated over and over again in state and federal courts throughout the Progressive era. There is a purpose, however, to including this history. One of the most durable myths about the Ninth Amendment is that it attracted little attention prior to the modern Supreme Court's discovery of the Ninth in Griswold v. Connecticut. The present discussion puts this myth permanently to rest. The second half of the chapter helps explain how the myth arose in the first place.

Keywords: Constitution; federal courts; New Deal; state courts; Progressive era

Chapter.  21608 words. 

Subjects: Constitutional and Administrative Law

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