Constitutionalizing Three Theories of Disability Discrimination--Disparate Treatment, Reasonable Accommodation, and Integration--Through A Jurisprudential Pluralistic and Constitutional Pluralistic Reading of the Ninth Amendment (Dissertation)

218 Pages Posted: 5 Mar 2021 Last revised: 15 Mar 2022

Date Written: March 4, 2021


This dissertation seeks to answer whether the Constitution of the United States prohibits government entities from committing various types of discrimination against people with disabilities: (1) disparate treatment (2) failure to make reasonable accommodations, alterations, and modifications and (3) failure to properly integrate persons with disabilities, which includes an unjustified institutionalization component. To answer this question, this dissertation will use various well accepted modalities of constitutional analysis first solidified by the constitutional pluralist, Professor Phillip Bobbitt, and continuously used throughout American jurisprudence. As such, the methodology of this dissertation can be said to be socio-legal and legal-historical.

Using the various modalities of constitutional pluralism, this dissertation shows that the Ninth Amendment provides protection for various unwritten rights; and that these rights can be protected under the following rubric:

(1) A plaintiff identifies a putative right with varying degrees of specificity depending on how widely protected or respected the putative right is in the nation;
(2) The plaintiff must then show that the right is generally accepted by the nation—either in its customs or statutes; and
(3) That right must reflect some other principles found in the Constitution or jurisprudence associated with those clauses.

It will be shown that the concepts of discrimination discussed above meet each of these elements. To fully discuss this thesis, this dissertation will be divided into three books.

Book I discusses the history of disability rights. This is done to place disability rights in its proper constitutional and legal-historical context. It will discuss, inter alia, eugenics, institutionalization, and certain views about the concept of “disability” more generally.

Book II will discuss the law, the Constitution, and legal interpretation. It will begin with a discussion on analytical jurisprudence and offer a definition of “law” for purposes of this dissertation. It will then conduct an overview of constitutional law; and will examine why courts should interpret the Ninth Amendment the way I suggest above.

Book III will discuss disability rights laws in general, with a heavy focus on the federal Americans with Disabilities Act, which has been replicated throughout the nation. Book III will also apply my Ninth Amendment analysis to the three theories of discrimination discussed above—disparate treatment, reasonable accommodation, and integration. Book III will then offer a discussion as to why these three theories should be constitutionalized through the Ninth Amendment. The first main reason why conditionalization would be beneficial is that while the ADA binds the states and local entities, only a small fraction of the federal government is bound by it. The other two most important reasons why courts should constitutionalize these three theories of disability discrimination relate to congressional power. First, recognizing that these theories are protected by the Constitution, would mean that they cannot be undermined by Congress. This is especially poignant because of recent congressional attempts to undermine certain parts of the ADA. Constitutionalizing these rights, however, would not undermine Congressional power to protect those with disabilities. Rather, such constitutionalizing would actually expand Congressional power under Section 5 of the Fourteenth Amendment. Related to Section 5, constitutionalizing these three theories of disability discrimination would greatly assist in the abrogation of sovereign immunity. Currently, the easiest way to abrogate state sovereign immunity is to find that state action has violated both a federal statute (like the ADA that is based on section 5 of the Fourteenth Amendment) and some constitutional right. At present, disability rights plaintiffs are only protected by rational basis scrutiny, which means abrogation is often difficult, because state action against those with disabilities is likely to pass constitutional muster.

Lastly, Book III will acknowledge that “what the courts give the courts can take away.” Thus, even recognizing that the courts should interpret the Ninth Amendment to protect the three theories of disability discrimination listed above, the same courts could overrule such interpretation. As such, the last portion of Book III will discuss the need for a Constitutional Amendment that explicitly protects people with disabilities, as an alternative to my Ninth Amendment theory.

Suggested Citation

Warden, Derek, Constitutionalizing Three Theories of Disability Discrimination--Disparate Treatment, Reasonable Accommodation, and Integration--Through A Jurisprudential Pluralistic and Constitutional Pluralistic Reading of the Ninth Amendment (Dissertation) (March 4, 2021). Available at SSRN: or

Derek Warden (Contact Author)

Louisiana Supreme Court ( email )

400 Royal Street
New Orleans, LA 70130
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics