Re: Overturning Slaughterhouse: Resistance to incorporating 9thAmendment

[Zietlow, Rebecca E.]

Many members of the 39th Congress believed that the Ps or Is of citizenship included fundamental rights based on a natural law theory. The debates are full of references to Corfield by supporters of the 1866 Civil Rights Act and theb 14th Amendment.

Rebecca Zietlow

________________________________

From: conlawprof-bounces at lists.ucla.edu <conlawprof-bounces at lists.ucla.edu> 
To: jon.roland at constitution.org <jon.roland at constitution.org> 
Cc: conlawprof at lists.ucla.edu <conlawprof at lists.ucla.edu> 
Sent: Fri Apr 30 14:11:25 2010
Subject: Re: Overturning Slaughterhouse: Resistance to incorporating 9thAmendment 


There is no reason to think that the Court would "incorporate" the Ninth under the P or I Clause, given it has shown little interest in doing so under the DP Clause.  And rightly so--men like Bingham and Howard described the P or I Clause as protecting liberties listed in the first eight amendments, and not the Ninth and Tenth.

The Court's concern, I believe, is focused not on the Ninth Amendment, but on Article IV.  Justice Washington in Corfield described these rights as including those "fundamental" rights which states had always conferred upon their own citizens.  Libertarians like Gura believe that the P or I Clause transforms these originally state-conferred rights into an unlimited set of national substantive rights.

Although the actual history of the P or I Clause significantly undermines such claims <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1561183> , this continues to be the dominant view in the academy.  As Gura asserted in oral argument, such rights are unlimited.  Thus, the concerns of the Court. . .

Kurt T. Lash
Alumni Distinguished Professor of Law
Co-Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law (as of summer 2010)

James P. Bradley Chair of Constitutional Law
Loyola Law School, Los Angeles (through Spring 2010)
http://www.lls.edu/academics/faculty/lash.html
kurt.lash at lls.edu
213-736-1137

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