Abstract
In ruling that the Due Process Clause of the Fourteenth Amendment does not protect a right to an abortion, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization relied on reasoning that casts serious doubt on the continued validity of other unenumerated constitutional rights. According to Dobbs, unenumerated rights cannot be recognized unless they are deeply rooted in this Nation's history and traditions, and have long enjoyed legal protection. In ruling that a right to abortion failed this test, the Court asserted that its decision did not undermine other previously recognized unenumerated rights, such as rights to contraception and same-sex physical intimacy. It seems highly doubtful, however, that these rights would survive application of Dobbs' stringent test.
Given Dobbs' troubling implications, this Article argues that unenumerated constitutional rights are properly grounded in the Ninth Amendment, in light of the natural rights/social compact theory that animated adoption of that Amendment and the Bill of Rights. Collectively, that theory, the characteristics of the natural rights that are expressly retained in the Bill of Rights, and the broader political considerations surrounding the adoption of that measure, provide judicially manageable standards for identifying unenumerated natural rights protected by the Ninth Amendment. While these standards place meaningful constraints on judicial discretion, they do not limit the rights protected under the Ninth Amendment to only those recognized in the eighteenth century. The founding generation understood that the natural rights principles underlying the Amendment would adapt to contemporary circumstances. Application of these principles today justifies recognition of a relatively small set of natural rights that pertain to essential and universal human needs, including rights to contraception, same-sex physical intimacy, and abortion (subject to previously recognized limitations).
The Article also addresses the principal objections that have been raised to a rights-protecting reading of the Ninth Amendment—arguments that, with limited exceptions, have largely gone unanswered. It concludes by explaining why unenumerated natural rights retained under the Ninth Amendment should be enforced against the states in the same manner as expressly protected natural rights—i.e., through "incorporation" into the Due Process Clause of the Fourteenth Amendment.
Citation
Joseph R. Guerra,
The Ninth Amendment and Natural Rights/Social Compact Theory: A Defense of Fundamental Unenumerated Constitutional Rights in the Wake of Dobbs,
21 Duke Journal of Constitutional Law & Public Policy
113-191
(2026)
Available at: https://scholarship.law.duke.edu/djclpp/vol21/iss1/3