Replies

general_re posted:

The 9'th Amendment is a dead letter because it's a wish-list. How do you determine what is and isn't a right under the 9'th Amendment?

If properly interpreted, you don't have to. The 9th simply tells the fedgov that, just because a right is not enumerated in the first eight amendments, that does not mean that the fedgov can therefore eliminate any or all other rights - because if the 9th is properly read with the 10th, that is the realm of the states or the people.
However, with the passage of the 14th amendment, trying to use the 9th generally creates a circular argument that did not exist prior to the 14th, and your point becomes more relevant.
20 po dirtboy

Not so. The "privileges and immunities" clause is present in the original Constitution (Article IV, section 2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.)
I do not share the widespread view that XIV "incorporates" I-X against the States, in fact, I think that view makes no sense. - jim noble -

The priviliges & immunities clause was being violated by states after the civil war, - [IE -- former slaves were being denied the right to own guns] - under the mistaken Marshal Court doctrine that the first ten amendments only limited the federal government.
The 14th was ratified to correct this flaw, and by further defining that the rights included those to 'life, liberty, or property', in effect expanded/defined the meaning of 'unenumerated rights' as per the 9th.

The 14th was ratified to correct this flaw, and by further defining that the rights included those to 'life, liberty, or property', in effect expanded/defined the meaning of 'unenumerated rights' as per the

General re, however, makes a good point. Prior to the passage of the 14th Amendment, the 9th functioned primaraly as a bulwhark against the federal government. With the 14th in place, the 9th could just as easily be used to create a federal right (such as gay marriage), and then an activist court could ram that new right down the throats of the states with the 14th.

What I'm more or less trying to get at is that the problem with the 9'th is that it's completely open-ended. If we all sat down, we could probably come up with some rights that we all agree should be covered by the 9'th Amendment. But the problem is, there's no legal, Constitutional, or logical reason we have to stop there - we can keep on going and assert any old thing that we like to be a 9'th Amendment right. That's the real problem with it - it covers anything our little hearts could possibly desire with no trouble at all.

Then you get perverse stuff being pushed on us, like what Ralph Nader thinks the rights of the people ought to be. And then it's free lunches for all, courtesy of the Ninth Amendment and us working stiffs ;)