I'm not convinced. And the reason I'm not convinced is that the liberals are not using the Ninth Amendment to justify their judicial activism, they're finding fundamental rights in the substantive due process clause of the 14th amendment.
Nobody's used the Ninth, ever, to win a case. They've certainly tried, and there's tons of case law where it has been rejected (which would have to be overcome, thank you very much).
I'm not convinced. And the reason I'm not convinced is that the liberals are not using the Ninth Amendment to justify their judicial activism, they're finding fundamental rights in the substantive due process clause of the 14th amendment.
In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:
Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.
See U.S. Const., Amend. 9.
As the second Justice Harlan recognized:
"The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . .
Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777