The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong

Randy E. Barnett

in Restoring the Lost Constitution

Published by Princeton University Press

Published in print November 2013 | ISBN: 9780691159737
Published online October 2017 | e-ISBN: 9781400848133
The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong

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This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth Amendment. The era in which the Supreme Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. The doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. The chapter first provides an overview of Footnote Four before discussing the Ninth Amendment, which mandates that unenumerated rights be treated the same as those that are listed. It shows that Footnote Four runs afoul of the text of the Constitution, and more specifically the Ninth Amendment.

Keywords: presumption of constitutionality; Footnote Four; Supreme Court; liberty; legislative activism; Ninth Amendment; unenumerated rights; U.S. Constitution

Chapter.  12740 words. 

Subjects: Constitutional and Administrative Law

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