Lots of people are very scared of the Ninth Amendment: Nino Scalia, Robert Bork--and Sebastian Holsclaw. Sebastian is so scared that it drives him into complete incoherence:
Brad DeLong's Semi-Daily Journal: For Harriet Miers: [Brad DeLong wrote:]
[Harriet Miers] will be, I think, likely to be vastly better as a judge than the alternative--which is some "originalist" who doesn't get that James Madison wrote:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
because he didn't want any judges, ever, anywhere in the United States to argue: "You don't have that right because you can't show it to me written down in the Constitution.""
Do I have the Constitutional Right to grab all of Mr. Delong's money?
Do I have the Constitutional Right to kill an annoyingly whiney child in the grocery store?
Does any American have the Constitutional Right to torture bin Laden if he is captured?
Is there are a right to abortion?
Just because something isn't in the Consitution doesn't mean that it is a right either. And since liberals have almost no articulable scheme for figuring out which things are rights and which things aren't, perhaps trying to bother with the text of the Constitution might actually be worthwhile.
Jemmy Madison tells you there's something you cannot do--use the absence of a potential right from the text of the Constitution to deny or disparage the right--he's backed by Washington, Adams, Jefferson, Hamilton, and the eighteenth century congress of the United States of America and the legislatures of the several states; and you proceed to say that you're going to do it anyway because "liberals have almost no articulable scheme for figuring out which things are rights"?
Now that's just plain silly.
For Madison, what the rights of the people are is deadly serious business: rights are, after all, unalienable; the sole purpose of government is to secure them; and a government that fails to secure the rights of the people needs to be altered or abolished.
Madison is sending a direct and personal message to Nino, Bobby, and Sebastian: Don't you dare interpret my Constitution to contract or restrict the rights of the people!
What are these rights? Madison would be puzzled at Sebastian's puzzlement. He would say that it is obvious where rights are to be found (if not quite so obvious what they were). Some rights--enumerated rights--are found in the Constitution. Other rights can be found in the grand tradition of liberal History and Moral Philosophy. Still other rights can be found in the evolving British common law tradition: before Runnymede nobody had a right to be tried by a jury; after Runnymede barons accused of crimes had a right to be tried by a jury of fellow barons, who would understand; by 1789 all free men (and women) had such a right. Madison's original understanding was that judges and other officials would look outside the Constitution to figure out what the rights were that the United States government was instituted to secure.
A Constitution that expressly says that it is not complete and that is embedded in a common-law tradition is a curious thing. It is--or perhaps I should say that Georgy, Johnny, Tommy, Jemmy, and all the others' original understanding of it is that it is--A LIVING DOCUMENT.