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, . . "
Anyone wishing to can go here and see what Scalia actually wrote. Suffice it to say, you've taken it totally out of context:
http;//caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-138
Regarding the idea of inalienable rights, a case can be made for them. However, it would seem that they would be limited to things such as Scalia mentioned. Namely, activities that have a long historical basis in Western Judeo-Christian society. Anyone can come along at any point and assert an inalienable right to do anything. Do you expect to ratify every demand? Take the marriage issue for example. Suppose four men assert that they have an unenumerated, inalienable right to marry the "partner" of their choosing. One wants to marry a woman, one wants to marry another man, one wants to marry a horse, and one wants to marry a kitchen table. It's been a tradition in our society for thousands of years for men to marry women. Not only have such pairings been accepted, but they have been the norm, and have been considered good things to be celebrated. Not just recently, but throughout our history. That cannot be said of a man marrying another man, a horse, or a kitchen table. So one could make a defensible case that people have a right to marry a partner of the opposite sex as some sort of historically understood aspect of our civilization.
There are many problems with a wide-open interpretation of the 9th Amendment. As the potential demands for rights are unlimited, who is to limit them? Ultimately, the court will, but is that preferable to a legislature? At least we elect the legislature. What happens when people make conflicting rights claims? You see the problems this creates.