Yes I like the phrase “cross currents” you used.
A complete analysis requires several constitutional provisions to be considered.
With regard to the 9th Amendment, my understanding is that it should only be used to recognize existing rights, not “new rights”.
For instance, I strongly believe that home schooling is deeply rooted in the history and tradition of the United States. So if a state were to ban it I would be fine the court recognizing this right and characterizing is as essential to ordered liberty.
The left would cry activism, but they have no credibility and are intellectually dishonest. So it’s hardly worth arguing with them.
I would also suggest that our right to keep and bear arms could be easily protected the same way even in the absence of the Second Amendment.
The historical record would support that finding in both instances.
The left on the SCOTUS has really ruined a beautiful document. It worked pretty well until FDR.
Agreed; I have found arguing with the left, who can routinely can turn a catchy phrase but rarely bases reasoning on well-founded logic, to be almost always a waste of time.
As you well know, the meaning of the 9th is still argued over to this day; I have interpreted it to convey to future jurists an attitude of the Founders-era humility: meaning that despite having more foresight than most, by including the 9th they were, in essence, saying “we think we have covered the most fundamental rights in this document, but we may not be all knowing.Therefore, you citizens a few hundred years down the road may discover that we missed something. If you do, and decide that the “new” rights should be codified, then those belong to citizens, not the government. So I read it to encompass unknown (at that time) rights not enumerated.
What do you think?