The Ninth Amendment Post-Dobbs: Could Federalism Swallow Unenumerated Rights?

73 Pages Posted: 28 Mar 2024

See all articles by Kimberly L. Wehle

Kimberly L. Wehle

University of Baltimore - School of Law

Date Written: March 2024

Abstract

Just weeks before the Supreme Court in Dobbs v. Jackson Women’s Health Organization abolished the individual right to terminate a pregnancy without government interference, Republican Senators in then-Judge Ketanji Brown Jackson’s confirmation hearings queried her about the Ninth Amendment twenty-three times. Because the Ninth Amendment has long been treated as either excess verbiage or a rule of construction, the Senators’ redundant questioning was auspicious: Could it play a role in the 6–3 conservative majority’s reconfiguration of twentieth century constitutional law precedent? This Article explores the potential relationship between the Ninth Amendment and the modern Court’s approach to unenumerated rights as a matter of substantive due process. It posits that, from the federalism vantage point outlined in dissenting opinions in Griswold v. Connecticut, the Ninth Amendment, considered alongside Dobbs, may be positioned to justify reversion of other unenumerated rights to state legislatures within a generation’s time.

The problem with the Dobbs approach is that reliance on federalism as the panacea for rights protection is, empirically speaking, a myth. The majority in Dobbs signaled a penchant toward a restrictive view of unenumerated rights using “history and tradition” as the touchstone, emboldening the role of States over other sources of what Justice John Paul Stevens once called the “conceptual core” of liberty. But the Dobbs majority wrongly assumed that the electoral system works fairly to reflect the actual will of the voting public. It also ignored the Supreme Court’s decades-long hostility to voting rights, unnecessarily limiting the ability of individuals to elect representatives who will respond to the will of constituents. The Court’s new doctrinal trajectory is thus not sufficiently robust to protect the individual from government overreach.

Long before Griswold, the Court outlined an approach to unenumerated rights in Meyer v. Nebraska, which recognized rights beyond the Constitution’s text as necessary to liberty while at the same time confining unelected judges’ power to recognize new rights arbitrarily. Viewed as a mechanism for cabining the vast powers of government, Meyer offers a paradigm-shift in rights analysis—one that is grounded in the Court’s precedent as positive law—that would appropriately tether it to the concepts of limited government that deeply animate the Constitution rather than on socially controversial culture debates.

Keywords: federalism, Dobbs, unenumerated rights

Suggested Citation

Wehle, Kimberly L., The Ninth Amendment Post-Dobbs: Could Federalism Swallow Unenumerated Rights? (March 2024). Maryland Law Review, Vol. 83, No. 3, 2024, University of Baltimore School of Law Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4774802

Kimberly L. Wehle (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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