The Ninth Cause: Using the Ninth Amendment as a Cause of Action to Cure Incongruences in Current Civil Rights Litigation

Abstract

Many scholars have observed inconsistencies and absurdities within civil rights litigation doctrine. For example, when plaintiffs wish to sue federal actors, they resort to an implied cause of action for damages directly from the relevant provision of the Constitution, usually the Fourth or the Eighth Amendments. However, the courts have found that the right to sue federal actors for injunctive relief is essentially founded on 28 U.S.C. § 1331, which is a jurisdictional statute and not directly from the Constitution itself. Further still, modern litigants in civil rights cases who wish to sue for relief against state and local violations of constitutional rights must resort to a federal statutory cause of action (there is no similar statute found for violations from federal actors). Additionally, the famed Ex parte Young doctrine, a “legal fiction” under the Eleventh Amendment, allows suits against state actors for injunctive relief and is said to be implied directly from the Constitution, much like how the federal-damages counterpart is also implied from the Constitution. These are merely a few of the many incongruencies that have sprung up around civil rights litigation law.

While many have observed these inconsistencies, those who attempt to resolve them do so by justifying each with near back bending legal reasoning. This Article takes a very different approach. This Article builds on the theory of the Ninth Amendment that I proposed in Secundum Civilis. In so doing, this Article shows that the Ninth Amendment should be viewed as a cause of action—or rather as requiring a cause of action. It shows that when Congress passes legislation for the enforcement of constitutional rights, it is merely fulfilling its Ninth Amendment obligation. Moreover, this Article argues when Congress has not so acted, that the courts are required by the Ninth Amendment to allow such lawsuits as if such legislation were passed.

This Article sets forth several inconsistencies. However, full discussion of each inconsistency is left for various future articles.