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Politics : The Judiciary
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From: TimF12/15/2006 5:25:20 PM
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volokh.com

I'm posting this link more for the discussion sparked by the blog post, then for the actual post.

I don't actually agree with the idea expressed in the post, that the ninth amendment directly grants protection to unenumerated rights, at least not in a very general sense. If anything that can be construed as a right is protected than the 9th amendment means that the supreme court has all power. I think the 9th clearly is meant to restrain the federal government (remember it was enacted before incorporation) from acting outside of its expressed powers against individuals and defending the action on the basis of the idea that the action doesn't infringe on any of the expressed rights.

It might also reasonably be said that the 9th amendment would mean that any existing rights would not be revoked by the passage of the constitution. Any statute rights under earlier state or federal law would remain, and any rights granted under the articles of confederation might be considered protected by the constitution.

volokh.com
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