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.
"Fundamental Unenumerated Rights Under the Ninth Amendment and the Privileges or Immunities Clause,"
Akron Law Review: Vol. 49
, Article 5.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol49/iss1/5