on the 9th...

[acroyear]

Conservative vs Libertarian Judicial Philosophies : Dispatches from the Culture Wars:

Thus the arguments over the 9th amendment, which conservatives generally ignore and libertarians argue -- quite rightly -- is one of the very linchpins of the Bill of Rights. If you do not understand the importance of the 9th amendment, you simply do not get the point of having a Bill of Rights in the first place, or the relationship between governmental authority and individual rights.

As I have written many times, the 9th amendment was adopted by the framers of the Bill of Rights specifically to prevent future governments from taking the exact position that conservatives today have taken -- the idea that if a right is not specifically stated in the constitution, the government has the authority to do away with it. That was exactly the position that the framers were afraid would be adopted and Madison made clear that the 9th amendment was intended to prevent it from being taken.

Whenever a court upholds the assertion of an unenumerated right, conservatives ask the wrong question: "Where does the constitution mention that right?" The correct question, of course, is, "Where does the constitution give government the authority to take that right away?"