Fundamental Unenumerated Rights Under the Ninth Amendment and Privileges or Immunities Clause

30 Pages Posted: 29 Mar 2015 Last revised: 15 May 2015

See all articles by Adam Lamparello

Adam Lamparello

Georgia College and State University; Assistant Professor of Public Law

Date Written: March 27, 2015

Abstract

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that path and, ironically, results in a process of decision-making that is fairer than the Court’s current due process jurisprudence.

Keywords: privileges and immunities clause, ninth amendment, fourteenth amendment, due process of law, equal protection, supreme court

JEL Classification: K40

Suggested Citation

Lamparello, Adam and Lamparello, Adam, Fundamental Unenumerated Rights Under the Ninth Amendment and Privileges or Immunities Clause (March 27, 2015). Akron Law Review, Vol. 48, Available at SSRN: https://ssrn.com/abstract=2586311 or http://dx.doi.org/10.2139/ssrn.2586311

Adam Lamparello (Contact Author)

Assistant Professor of Public Law ( email )

Georgia College and State University ( email )

Milledgeville, GA 31061-0490
United States

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