Federalism and the 9th Amendment
Loyola-LA Legal Studies Paper No. 2007-41
The Loyola Lawyer, Vol. 81, Fall 2003
9 Pages Posted: 17 Oct 2007
Abstract
Suppose that Justices Black and Stewart were correct (or at least not completely wrong) when they observed in Griswold v. Connecticut that the 9th and 10th Amendments were meant to operate solely as a tandem guarantee that the federal government was one of enumerated powers. Although the Black/Stewart position seems to ignore the obvious textual differences between the 9th and 10th Amendments, draining the 9th Amendment of any independent utility, their theory of "coordination" does not necessarily lead to the conclusion that the text of the 9th Amendment can be ignored. This essay tentatively explores how a coordinated model of the 9th and 10th Amendments might operate. The basic thesis is that "retained rights" are those created by exercises of the "reserved powers." This is, quite obviously, a radical departure from current doctrine. It suggests the possibility that such reserved powers/retained rights may sometimes operate as a trump on the exercise of federal power, leading to a type of reverse supremacy. The point of this essay is not to establish a proposition, but simply to consider possibilities and to open a dialogue.
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