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It has become common to believe that those who ratified the Fourteenth Amendment “incorporated” not only the specific guarantees of the federal Bill of Rights, but also the other fundamental rights “retained by the people” in the Ninth Amendment. Even among those who acknowledge that the Ninth Amendment was originally a “federalism” provision that simply “retained” all that had not been granted as “powers” to the federal government are those who contend that, in light of the adoption of similar provisions in the state constitutions, by 1866 this language had become a free-floating affirmation of unenumerated rights. This Article attempts to show that the state constitutional equivalents of the Ninth Amendment were not understood as stating limitations on state powers and that the Fourteenth Amendment was designed to prevent the kind of discrimination that would “abridge” the rights of citizens, but not to guarantee unenumerated fundamental rights.

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36 Wake Forest L. Rev. 747 (2001).