Ah yes, the faulty libertine reading of the 9th Amendment.
I first must ask, are you familar with the phrase "Designatio unius est exclusio alterius, et expressum facit cessare tacitum."? That phrase goes to the heart of why the 9th Amendment was included in the Bill of Rights.
James Madison made this clear when he stated:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
You see, the Libertine rewrite of the 9th Amendent was addressed and REJECTED by a Federal District Court in Alabama in 1980:
"In contrast to the first eight amendments, the Ninth Amendment does not specify any rights of the people, rather it serves as a savings clause to keep from lowering, degrading or rejecting any rights which are not specifically mentioned in the document itself. The Ninth Amendment does not raise those unmentioned rights to constitutional stature; it simply takes cognizance of their general existence. This is not to say that no unenumerated rights are constitutional in nature, for some of them may be found in the penumbras of the first eight amendments or in the liberty concept of the Fourteenth Amendment and, thus, rise to constitutional magnitude. It is only to say, however, that unenumerated rights do not rise to constitutional magnitude by reason of the Ninth Amendment. The foregoing interpretation of the Ninth Amendment is supported by the history of that provision, which reflects that the Ninth Amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution. 1 Annals of Congress 438-40 (1789); II Story, Commentaries on the Constitution of the United States 626-27 & 651 (5th ed. 1891). Therefore, this court is of the opinion that there is nothing in the Ninth Amendment to be incorporated by the Fourteenth Amendment as the Ninth Amendment is merely a rule of construction. The alternative interpretation, which is unacceptable to this court, would be to construe the Ninth Amendment as incorporating all fundamental rights into the Constitution, although they were never intended to be rights of constitutional magnitude." CHARLES v. BROWN, 495 F. Supp. 862 (N.D. Ala. 1980)
The 6th Circuit adopted this reasoning in Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991):
We agree with the district court that the ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment "was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution." Charles v. Brown, 495 F. Supp. 862, 863-64 (N.D. Ala. 1980). Accordingly, Gibson's ninth amendment claim holds no merit.
The reasoning of the Alabama Court is largely correct, allow me to explain why. If one trys to morph the 9th Amendment into a magic guarentee of a specific right that someone dreams up, then you run into a fundamental problem, Judges, not the people become the final arbiters on what is included in the 9th Amendment.
Let's say that an adult libertarian NAMBLA member claims a fundamental right under the 9th amendment to engage in sexual relations with an 8 year old boy. Where does the 9th Amendment say that this right doesn't exist? You might scoff at such an idea, and rightly so, but the NAMBLA member could use the 9th amendment, along with the aid of a sympathetic judge, to invent such a right out of thin air.
Used in that manner, the 9th Amendment would be nothing more than a Rorschach blot, one whose meaning would change depending on what creative "right" one could invent and attempt to invoke. What's dangerous about this is that it would be the unelected and largely unaccountable Judge, not the elected and accountable represenative, that would be making the final decision on the value of the claimed "right".
The fact of the matter is, [T]he Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." Troxel V Granville 530 US 57 (2000) (Scalia, J. Dissenting).
With all that said, I must add this caveat, please do not misinterpret what I am saying as to be "There are no unenumerated rights" as that reading would be patently incorrect.
It's just that the libertine rewrite of the 9th Amendment as actually granting substantive rights is patently flawed.
It's real simple, and takes up a lot less space than what you posted.
Rights are granted by God, not government, and the power to restrict those rights are granted to the government by the governed.
That's it.
People need to use common sense when interpreting the Constitution. There would be no 15th or 19th Amendments if the 14th Amendment's Equal Protection Clause is what the liberals say it is. Likewise, if the 9th Amendment is what the libertarians say it is, it would contradict the rest of the Bill of Rights and would, in fact, undo the Federalist system the very authors of the 9th Amendment gave us.
If one trys to morph the 9th Amendment into a magic guarentee of a specific right that someone dreams up, then you run into a fundamental problem, Judges, not the people become the final arbiters on what is included in the 9th Amendment.
Our inalienable rights to life, liberty, or property are not "dreamed up".
-- It is the job of the USSC to issue opinions on any rights at issue, but you are hyping the issue to claim they are "final arbiters". The people retain final power.
What's dangerous about this is that it would be the unelected and largely unaccountable Judge, not the elected and accountable represenative, that would be making the final decision on the value of the claimed "right".
You laughably confer "final" power over our rights to "elected and accountable representatives"? Read Article VI. -- Both fed & state officials are bound to support our Constitution, which gives final power to the people. [see the 10th]
The fact of the matter is, [T]he Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." Troxel V Granville 530 US 57 (2000) (Scalia, J. Dissenting).
Scalia, dissenting.
"-- In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men . . . are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage. --"
With all that said, I must add this caveat, please do not misinterpret what I am saying as to be "There are no unenumerated rights" as that reading would be patently incorrect. It's just that the libertine rewrite of the 9th Amendment as actually granting substantive rights is patently flawed.
There is no "rewrite" of the 9th. -- Our rights to life, liberty, or property can not be infringed upon, -- they can only reasonably regulated with due process of law.
As Justice Harlan recognized:
"-- [T]he 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, . . "
"It's just that the libertine rewrite of the 9th Amendment as actually granting substantive rights is patently flawed."
Remarkably enough, you're right... the Ninth Amendment (along with the rest of the Constitution for the United States) does not GRANT rights. The whole document is a recognition of PRE-EXISTING RIGHTS, granted by our Creator (or by Nature if you are not a believer). However, your correctness in the specific is NOT your intent, as I note with lugout's quote:
"Our rights are not granted by documents. They are sometimes confirmed in them, or enshrined in them, but they are not granted by them. And the absence of a right from the text of a documents does not mean, in the least, that the right does not exist and is not fundamental."