Life, Liberty and Happiness. In Pursuit of the Ninth Amendment

Abstract

Prominently included in the American idea of freedom is individual rights. In American history this concept has fallen into two broad ideological camps. Most common have been conservative judicial scholars and Supreme Court justices that limit individual rights to those explicitly identified in the Constitution (originalists/textualists). This view has often involved the states’-rights stance. Since Lochner v New York (1905) the first group also includes less conservative Justices (often associated with the Warren Court) that are willing to include rights that are related to or derived from those rights clearly stated in the Constitution. More recently, a smaller second group of Justices and scholars have argued that the above position ignores the Nineth Amendment which recognizes unenumerated rights. This latter group argues that Americans have many unnamed individual rights that are equally Constitutional such as the right to privacy. The Ninth Amendment implies that new rights should be pursued. This paper examines this history and makes a case that unenumerated rights should be developed. Since the Dobbs v Jackson Women’s Health Organization (2022) decision unenumerated rights are being threatened much like the right to abortion.