A reader comments on Peters post "Lap Dancing on the Constitution" (below) to suggest that the Lawrence Supreme Court majority should have found the liberty interest to engage in homosexual sodomy not in the "liberty" covered by the Due Process Clause of the Fourteenth Amendment, but in the Ninth Amendment. The Ninth reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This suggestion deserves comment.
The Ninth Amendment is a real tough constitutional nut. If it creates constitutional protection for, say, sexual privacy, which is not otherwise enumerated in the Constitution, there is absolutely no principled legal basis whatsoever to deny constitutional status to every other right anyone could imagine. Most lawyers think that result cant be right. On the other hand, if you say the Ninth Amendment doesnt create any constitutional rights, it then becomes a dead letter. That result doesnt seem right, either.
The best solution to this puzzle Ive seen & heard comes from Lawrence Claus, a law professor at the University of San Diego. He suggests that the Ninth Amendment means to stop legislators & judges from construing -- note that the Amendment does speak of "construe" -- the rights that the Constitution does enumerate to annihilate the rights it does not. So, even though the First Amendment enumerates a right to free speech, that right should not be construed to deny or disparage other citizens right to be free from defamations. Or, assuming that the Fourteenth Amendment covers the "liberty" of sexual privacy, that liberty should not be construed to deny or disparage, say, young men & womens right to enter into stable and long-lasting marriages, or childrens right to be reared in a stable family.
So the Ninth Amendment isnt a fix-all. If it applies, it points right back to the $64,000 questions in Lawrence: How does sexual conduct outside marriage affect public morals, and do those morals support the stability and the social functions of the family?