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The Ninth Amendment and the Politics of Creative Jurisprudence - Disparaging the Fundamental Right of Popular Control (Paperback)
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The Ninth Amendment and the Politics of Creative Jurisprudence - Disparaging the Fundamental Right of Popular Control (Paperback)
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The Ninth Amendment holds that every right not explicitly granted
to the federal government by the Constitution belongs to the states
or to the individual. Further, those rights held by the government
should not be construed to deny or disparage other rights held by
the people. As in other areas of contention between federal power
and states' rights, the Ninth Amendment has become subject to
activist Supreme Court interpretation whereby the traditional model
of federalism, in which states had meaningful public policy
prerogatives, has given way to a model in which states become mere
extensions of the U. S. government. In this volume, Marshall DeRosa
provides a thorough analysis of Supreme Court unenumerated rights
policy and offers suggestions toward reestablishing American
federalism as envisioned by the framers of the Constitution. The
book opens with a review and analysis of current debates over Ninth
Amendment rights and then utilizes the privileges and immunities
clauses as demonstrative of the traditional relationship between
the states' police powers and unenumerated fundamental rights.
DeRosa then considers the critical role of academia in shifting
public policy away from popular control and toward the judiciary.
Later chapters include national and state case studies as instances
of judicial creativity, an examination of the effects of Ninth
Amendment jurisprudence on the Second Amendment as it bears on the
gun control debate, and a comparative analysis of contrasting
theories on the status of unenumerated rights. In his conclusion
DeRosa offers some prescriptive thoughts on how to restore the
original constitutional concept of popular consent as a remedy to
an increasingly unaccountable federal judiciary. By restoring the
Ninth Amendment to the context of American federalism, this volume
constitutes a major contribution to contemporary scholarship,
challenging a corpus of commentary that either ignores,
misunderstands, or misrepresents the relevance of popular control
in the articulation of unenumerated rights. The Ninth Amendment and
the Politics of Creative Jurisprudence will be of interest to
political scientists, historians, legal theorists, and political
practitioners.
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