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Volume 60, Issue 4


A Textual-Historical Theory of the Ninth Amendment

by  Kurt T. Lash

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…


Kurt Lash’s Majoritarian Difficulty

A Response to A Textual-Historical Theory of the Ninth Amendment
by  Randy E. Barnett

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…


On Federalism, Freedom, and the Founders’ View of Retained Rights

A Reply to Randy Barnett
by  Kurt T. Lash

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…


Ex Parte Young

by  John Harrison

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…


The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program

The FDR Precedent
by  Neal Katyal & Richard Caplan

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…


Terrorism and the Convergence of Criminal and Military Detention Models

by  Robert Chesney & Jack Goldsmith

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…


The Constitution and the Rights Not to Procreate

by  I. Glenn Cohen

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…


Privatization and the Law and Economics of Political Advocacy

by  Alexander Volokh

A common argument against privatization is that private providers will self-interestedly lobby to increase the size of their market. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating for incarceration. I…