Abstract

This article draws from Book II of my dissertation and examines the Ninth Amendment to the United States Constitution. By applying principles of constitutional pluralism (which I contend is the only method that exists), this article contends that the Ninth Amendment is a substantive protector of unwritten rights. In making this argument, this article also sets forth a method by which courts can examine whether that provision protects an alleged right. Ultimately, this article concludes that (1) the proponent of an unwritten right must put forward that right; (2) they must show that the principles, text, or doctrines associated with the various clauses of the constitution reflect the alleged right; and (3) they must also show that the American people have popularly ratified the right—either in our history or traditions or in widespread current practice and values. Lastly, this article examines how these rights are held against the States.

Keywords

Derek Warden, Ninth Amendment, Constitutional Pluralism, Whether the Ninth Amendment Protects a Right, Constitutional Analysis