In order to secure the ratification of the Constitution, the Federalists were forced to provide a Bill of Rights to calm the fears of the Antifederalists. This sparked a fear of its own among the Federalists, namely that the enumeration in the Constitution of certain rights would lead future generations to regard those enumerated rights as the only ones protected. In order to guard against this, James Madison wrote the Ninth Amendment, which provides that “The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Despite this safeguard, the fears of the Federalists proved prescient. Today, new rights are frowned upon, and if they are recognized, they are recognized under the doctrine of substantive due process. This article argues that substantive due process is a poor choice for recognizing new rights for two reasons. First, there is no textual basis for recognizing rights under the due process clause of the 14th Amendment. Second, there are no principled limits that can be placed on the doctrine, making it a vehicle for the raw exercise of judicial power.
Instead, the Court should utilize the Ninth Amendment to recognize unenumerated rights. This is consistent with the history of the Amendment, the intent of the Founders and unlike Substantive Due Process, it is possible to place principled limits on the recognition of new rights, using a standard canon of construction that courts have been applying for centuries.
Available at: http://works.bepress.com/alan_tauber/2/