[general_re]

Precisely right. It's been a while since I've read it, so I may be misremembering, but that's basically what Pound was on about WRT the 9'th Amendment - let's use it to advance our social agenda. We think judicial activism is a problem now, but just wait 'till they get their mitts on the Ninth Amendment - there'll be all sorts of "rights" you never knew you had :^)

For some good background reading on this, Marshall De Rosa's book "The Ninth Amendment and the Politics of Creative Jurisprudence" is well worth the read, as is Patterson's book "The Forgotten Ninth Amendment"...

[dirtboy]

I think that, even though the 9th has seldom been referenced by the courts, it did serve as a damper on federal power for many years until the New Deal, the prime example being the need to pass a Constitutional amendment to implement Prohibition. Nowadays, the feds ban anything they want to in complete disregard of the Constitution. So the 9th can be useful in discussions of, say, the drug war. But without a proper connection to the 10th, coupled with the ability of the courts to misuse the 14th, makes it a tricky weapon, especially given the inability of the federalist justices on SCOTUS to resist temptation when they want federal action to promote their own views.