The problem is that your position requires that those unemumerated rights be determined by judges--in other words, by a cabal of black-robed lawyers. And since our other rights are unenumerated, they can pretty much rewrite the laws any way they want them. What about the right to self-government?
I prefer to be governed by the people's representatives, except in very specific and enumerated instances. I believe that my unenumerated rights are safer in the hands of the citizenry than in the hands of the lawyers.
Can you find instances from the early history of this nation (when the founding generation was still alive) of anyone using the Ninth Amendment as an argument against state anti-sodomy laws, let alone of courts overturning them? If you can, I will grant that perhaps your interpretation of the effect of the Ninth Amendment is correct. If not, please explain to me why the Founders so badly misinterpreted their own work.
This is not about private behvior. This is about behavior which threatens the public order. You can do in your own bedroom to your heart's content, but I will not argue for anyone's right to have unencumbered sex of any type just because they are "barely" shielded from public view.
In our republics, each officer of the executive branch is also sworn to NOT enforce statutes of the legislature that each executive officer deems in violation of the un-enumerated inherent rights that our state and federal constitutions protect.
But most importantly, in every criminal case, all 12 randomly selected jurors are bound to NOT enforce unjust statutes. So a statute that 1/12th of the community thinks is in violation of the un-enumerated rights that our constitutions refer to will not be enforced.
What about the right to self-government?
The system of vetoes and separation of powers in our republics is a great advancement toward true self-government.
I prefer to be governed by the people's representatives, except in very specific and enumerated instances.
I prefer our system of citizen oversight of all statutes drawn up in smoke filled rooms.
I believe that my unenumerated rights are safer in the hands of the citizenry than in the hands of the lawyers.
Exactly. But the lawyers (and teachers unionists) that run our state legislatures as well as the lawyers that run the judiciary get a veto too.
Can you find instances from the early history of this nation (when the founding generation was still alive) of anyone using the Ninth Amendment as an argument against state anti-sodomy laws, let alone of courts overturning them? If you can, I will grant that perhaps your interpretation of the effect of the Ninth Amendment is correct.
Yes, up until the mid to late 19th century, the citizenry regulary vetoed statutes that they considered to be in violation of inherent rights. The best example is the slavery statutes. Godfrey Lehman has documented how juries were instrumental in slavery's abolition in the north AND the south. The Zengar case and the Sedition Acts of the 1790s are world famous cases of how our republics protect the un-enumerated rights of its citizens that are referred to in our constitutions.
Nowadays, all jurors are threatened by judges (lawyers) that they will be jailed for contempt if they attempt to exercize their power to nullify unjust statutes.