US Constitution, 9th Amendment

The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.

9th Amendment can be applied to protect rights of people. Yet Supreme Court hasn't based any decisions on 9th Amendment, almost never mentions it. Expecting judicial branch to never apply 9th Amendment has allowed other branches to expand their powers while violating people's rights.

SCOTUS treats 9th Amendment as a pandora box, fearing first decision based on it would create an infinite source of rights. Only effect it seems to have is to sometimes remind SCOTUS of the discipline of limited-government and balancing rights/powers. SCOTUS prefers to deflect arguments of existence of other rights, instead letting legislative branch recognize and enumerate a right by an amendment.


notes

  • 9th Amendment was disregarded, to a large degree, by Judge Scalia.
    Scalia said in discussion with Hoover Institution, "Uncommon Knowledge", 2012.
    Underlined sentence of Scalia's directly contradicts 9th Amendment.
    Does natural law have a place in interpreting constitutional law?
    No.
    Look, it says what it says. I apply United States law. I don't apply natural law. God applies natural law. Now, natural law has a place in writing law, when you're writing a constitution, or when you're writing a statute, you should not put in anything that you know or believe is contrary to natural law, but once it's in there, it says what it says. And if it forces me to do something against my conscience, of course, I have to resign from the bench.
    [..]
    [Scalia asking interviewer] Did you mention the 9th Amendment? [..those who are] looking for other ways to get there, one of the ways is the 9th Amendment, which [in their view] is a "SOURCE OF UNENUMERATED RIGHTS" [Scalia's emphasis while quoting and refuting this phrase]. It isn't a source of unenumerated rights. [????] I apply the 9th Amendment, I apply it rigorously. I do not deny or disparage other rights. Maybe there is [other rights], [but] that is not my line of territory. You are free to argue to the legislator that there is, but I know it [any unenumerated right] is not one of the rights contained in the Bill of Rights, therefore, is not one of the rights I enforce. What the 9th Amendment was, was the expression of the framers's belief, in the natural law. Just because we have a few rights here doesn't mean that there aren't any others. If you try to take them anyway, we'll be back on the barricades. That's what it meant.