[cherrycapital]

I disagree with the whole substantive due process reasoning, by the way, for the same reasons mentioned by the article. However, I would've reached the same result (upholding a right to privacy) as one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut, but the 14th Amendment faction won out by the time of Roe.)

[tahiti]

"However, I would've reached the same result (upholding a right to privacy) as one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut"

You are exactly correct.

It is very gratifying to me that there is at least one other "Freeper" who understands and appreciates the 9th amendment.

I am sure that I post at least once a week a reference to the 9th amendment as our ultimate defense against the federal tyranny of the misapplied commerce clause and tyranny of those who believe in majority rule.

If you have in fact read Justice Goldberg's concurring opinion in Griswold v. Connecticut, it is my opinion that Justice Goldberg began to scare himself with the real implication and power of the individual liberty residing and emanating from the implication of the 9th amendment and if applied correctly, the 9th amendment could begin to dismantle the entire federal regulatory system, such as, for example, using the 9th amendment as the constitutional basis for overturning laws enacted by the federal Congress forcing the states to enact seat belt laws to retain federal highway money, when he stated,

"I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive."

Justice Goldberg diminishes the power of the 9th amendment by using the phrase "...fundamental rights exist..."

What the hell are "fundamental rights?" More litigation, more fighting and arguing to try and determine that definition.

Similar to "compelling state interest."

[Sabertooth]

However, I would've reached the same result (upholding a right to privacy) as one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut, but the 14th Amendment faction won out by the time of Roe.)

Is it your opinion that there is an unenumerated right to consensual sodomy, by way of an extension of the unenumerated right of privacy?

[tpaine]

I disagree with the whole substantive due process reasoning, by the way, for the same reasons mentioned by the article. However, I would've reached the same result (upholding a right to privacy) as one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut, but the 14th Amendment faction won out by the time of Roe.)
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Our general rights to life, liberty, and property encompass ~all~ of our unenumerated and enumerated rights that can be imagined..

IE.. It is doubtful that any rational person would argue against our right to live a 'private' life, secure in our homes and persons.
- Thus, does it not reasonably follow; - we have an unenumerated, fundamental right to privacy, found under both the 9th & 14th amendments.

In the same way, we can find our right to keep arms in both the 2nd, and in the 14ths restriction that we can not be deprived of property without due process of law.

Prohibitory state laws against behaviors or property can not be termed to be 'due process'. - They are simply the arbitrary rules of a majority.

[mrsmith]

"one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut, but the 14th Amendment faction won out by the time of Roe.) "

Can't be done.

The Ninth was written and ratified to limit the power of the Federal Government.
(as proposed by Madison it read ...“The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.” )
It was rewritten for style, it was redundant to say it limited the Federal government.

Only under the Fourteenth can a federal court "construe" ( to be kind) itself this power. Though bizarrely it means denying everyone the Ninth amendment protection of their unenumerated rights from the federal government.

But perhaps I shouldn't presume any limit to the court's ability to construe itself powers.