Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment's actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. [...]

Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay I explain why his majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments in the Bill of Rights, and to the public meaning of the Ninth Amendment as it was received during its ratification. [...]

I want to thank Randy Barnett for commenting on my article, A Textual-Historical Theory of the Ninth Amendment. Professor Barnett's essays on the Ninth Amendment in the 1990s triggered the modern debate over the original meaning of the Ninth, and his recent book, Restoring the Lost Constitution, synthesizes his earlier work and presents a sophisticated theory of constitutional rights. [...]

Ex parte Young does not represent an exception to ordinary principles of sovereign immunity, it does not employ a legal fiction, it does not imply a novel cause of action under the Constitution or other federal law, and it does not create a paradox by treating officers as state actors for one purpose and private persons for another. The conventional wisdom is wrong with respect to all those issues for the same reason: Young was about a traditional tool of equity, the injunction to restrain proceedings at law, or anti-suit injunction. [...]

This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartime--President Franklin Delano Roosevelt's (FDR) wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. [...]

Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. The Bush administration has used three different mechanisms--traditional civil trials, military commissions, and military detentions--to justify the detention of terrorists, and not always in an obviously principled or coherent fashion. Congress has legislated with respect to military commissions in the Military Commissions Act of 2006. [...]

Does the Federal Constitution protect a right not to procreate, and what does that mean? Modern reproductive technology has made this question both more salient and more problematic. For example, a number of courts and commentators have assumed the existence of a federal constitutional right not to procreate and relied on it to resolve disputes over stored frozen preembryos that couples have fertilized in the course of in vitro fertilization (IVF).In this Article, I challenge that assumption. [...]