Ninth Amendment

[James G. Wilson]

   My book, The Imperial Republic: A Structural History of American 
Constitutionalism From the Colonial Period to the Beginning of the 
Twentieth Century (Ashgate, 2002), explores competing conceptions of 
republicanism and "empire" that have endured to the present day. 
 Perhaps its most surprising claim is that Dred Scott contained quite a 
bit of reasonable doctrine, most notably the rule that Congress could 
not create permanent colonies.  Dred Scott  thereby endorsed and 
protected Benjamin Franklin's basic revolutionary principle that there 
had to be equality throughout the republic, that there could be no 
"subjects of subjects."  Thus, The Insular Cases engaged in a slight of 
hand by dismissing Dred Scott because of its obvious sins; the 
Fourteenth Amendment eliminated the most odious aspects of Dred Scott 
while including, at a minimum, an anti-racism principle (which the 
Insular Cases also ignored).  The Fourteenth Amendment did not repeal 
the originalist understanding that there should be equality of 
citizenship throughout the republican empire (with the notable exception 
of the District of Columbia).

Michael Richardson wrote:

> >And if the judge in Igartua argued that territories did not exist at the
> >time of the ratification of Article II, I wonder what he or she 
> thought the
> >Northwest Ordinance was about.
>
> All territory under the Northwest Ordinance was "incorporated" hence 
> in a transition to statehood.  We had just finished a war of 
> independence over colonialsim.  The inferior status of Puerto Rico's 
> residents and a century of such status was never contemplated by the 
> founders. 
>
> While the District Court did not address the territorial issue, First 
> Circuit Judge Juan Torruella gave the "unicorporated territory 
> doctrine" a vigourous examination in his dissent.  See 407 F.3d 30
>
> An additional wrinkle to the Puerto Rico problem is the Insular Cases, 
> also explored at legnth by Judge Torruella in his dissent and in his 
> 1985 book The Supreme Court and Puerto Rico: The Doctrine of Separate 
> and Unequal.
>
>
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