[jwalsh07]

The ninth amendment was a constraint on federal powers. Now you want to turn it on its head and use it to assign even more power to an unelected judiciary?

Thanks but no thanks.

[Sandy]

You too. (See my reply #10.)

[tpaine]

jwalsh07 wrote:

The ninth amendment was a constraint on federal powers.

Our enumerated/um-enumerated rights are inalienable, and Constitutional principle protects them from violation by ANY level of government. See Art. VI.

Now you want to turn it on its head and use it to assign even more power to an unelected judiciary? Thanks but no thanks.

Our judiciary is appointed & controlled by the other branches of government. Which 'we' control by ballot box or bullet box. -- Take your pick.
-- You seem to be picking the side who favor State gun prohibitions. Why is that?

[Texas Federalist]

The ninth amendment was a constraint on federal powers. Now you want to turn it on its head and use it to assign even more power to an unelected judiciary?

Actually, the judiciary would have less power under Barnett's theory because original intent can be used to identify "retained rights" under the Ninth Amendment. Under post-New Deal Constitutional interpretation, there is no constraint to the rights that the judiciary now creates under the guise of due process or equal protection.

Also, democratically enacted laws are as much a facilitator of federal power as the judiciary, if not more. The entire welfare state was created from majoritariamism, but would be unconstitutional under Barnett's theory.