Ed Brayton on Positive Liberty has an excellent post on the Ninth Amendment (on which he partially relies on my work). He is responding to the argument, expressed by a law professor on a listserve, that was recently put forth in the Texas Law Review by Professor Kurt Lash of Loyola-Marymount. Professor Lash’s thesis has received wide attention, especially among those who seek to deny and disparage the Ninth Amendment–which he himself does not.
I will be soon responding to his argument myself in the most comprehensive and detailed treatment of the original meaning Ninth Amendment I have written to date. As I previously mentioned here, it is entitled “Five Originalist Models of the Ninth Amendment” and should be ready for public circulation and comment on SSRN sometime in August before I head to Georgetown for my visit this fall.
I am not activating comments on this post, because this matter can only ultimatly be settled by evidence; not the sorts of speculations one finds on blogs or in casual conversations, even among law professors, and because I won’t be offering any analysis of the available evidence until my paper is released. Presentation of evidentiary matters of this type require traditional legal scholarship, not blogging–though blogging is an excellent way of bring this scholarship to the attention of those who may be interested.
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