[mrsmith]

"I really don't think it was "making law" to say the ninth amendment protects a right for a married couple to have privacy in their use of contraceptives. "

The problem is that the Ninth does not give any power to the federal courts to over rule a state law.

The rights are "retained by the people". It is a factual determination whether people have "retained" a right. When a state law is evidence that they have not, there is no overriding it by anyone in the federal government.

No state law has ever been nullified by a federal court for Ninth Amendment reasons.

I'd like to see Griswold overruled just so this idea that the Ninth is a grant of power to the Federal government would be put to rest. Madison said when he proposed the Ninth that it was to prevent the unenumerated rights from being " assigned into the hands of the General Government". Which is exactly what happens if the federal courts use the Ninth as a souce of their power instead of a limit upon it.

[AndyJackson]

The problem is that the Ninth does not give any power to the federal courts to over rule a state law.

But the 14th does.