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Implications of Incorporating State Created Rights into the Federal Constitution Through the Ninth Amendment

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Please use this identifier to cite or link to this item: http://hdl.handle.net/1928/2577

Implications of Incorporating State Created Rights into the Federal Constitution Through the Ninth Amendment

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Title: Implications of Incorporating State Created Rights into the Federal Constitution Through the Ninth Amendment
Author: Aguilar, Esteban A., Jr.
Subject(s): State Constitutions
Federal Constitutions
Governmental Abuse of Power
Ninth Amendment
Legal Protections
State Laws
Constitutional Rights
Federal Courts
State Courts
Abstract: Professor Gregory Allen in Ninth Amendment and State Constitutional Rights suggested a hypothetical conflict that could arise between state and federal courts when a state constitution provides for greater protection against governmental abuse of power than the federal constitution. One possible safeguard of autonomy for those states choosing to grant their citizens greater state law protections than the federal government is the Ninth Amendment. The Ninth Amendment protects “unenumerated rights” that are retained by the people of the states. In theory, applying the Ninth Amendment would essentially federalize state law protections contained in state constitutions and guard that state from federal encroachment. The purpose of this paper is not to introduce the idea of what effect, if any, the Ninth Amendment should be given, a topic that has been extensively discussed. Rather, this paper will examine Professor Calvin R. Massey’s proposal for recognizing Ninth Amendment Rights, as well as explore some of the implications of adopting his three-part test. It is my hope that examining these effects will aid a federal court system contemplating whether to elevate the Ninth Amendment as an enforceable federal doctrine amid genuine doctrinal concerns against such an application.
Date: 2005
Description: 47 p. ; This student paper was awarded the 2004-2005 Law Alumni/ae Associate Prize.
URI: http://hdl.handle.net/1928/2577

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