Instapundit has a long, very cerebral post on the 9th Amendment, of which he says he is a big supporter. That got us thinking about our position.

For those of you who haven't focused on this Amendment in a while, it's the one near the end of the Bill of Rights that says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

One of the early and central issues raised by the Amendment was does the 9th Amendment actually grant rights or does it only protect us from having them taken away by the Government?

Using the 9th Amendment, the Supreme Court found its way to declaring a constitutional right to privacy in Griswold v. Connecticut. That didn't sit well with those on the right.

But they got their due with the Senate's rejection of Robert Bork as a Supreme Court Justice. Bork, once a supporter of 9th Amendment rights, switched horses at his confirmation hearing and claimed the 9th Amendment was unimportant and Griswold was wrongly decided. He said there was no right to privacy in the Constitution.

Moderate New York Democratic Senator Daniel Patrick Moynihan explained his decision to vote against Bork by saying that "it is his restricted vision of privacy which troubles me most. I cannot vote for a jurist who simply cannot find in the Constitution a general right of privacy.... Its importance is such that I cannot support anyone for a Supreme Court appointment who would not recognize it" (Congressional Record, 1987:14011-12).

Things quieted down for the 9th Amendment for a while, or perhaps it just seems that way since we haven't been following it. In any event, its getting play now.

The 9th Amendment is being used as a litmus test at new judge confirmation hearings--and even at the candidate selection stage. Current chief Jeb Bush legal counsel (and Former Florida Rep) Charles Canady flat out asked candidates about their views on the Ninth Amendment during state judicial selection interviews in Florida a few months back. (Broward Daily Business Review February 7, 2002 )

We have no problem with this at the confirmation hearings. We want to know whether a judicial nominee is likely to become an activist and improperly assert their private beliefs in their judicial decisions. We want Judge Prisiclla Owens to be questioned on her anti-abortion views.

The 9th Amendment is also used in other arguments---to argue for (and against) gay rights legislation; to argue for the right to use drugs and the right to be free from intrusion into one's personal computer files and email at work; and as a basis to recover for civil rights violations in racial-profiling cases. It's also been relied on heavily by Second Amendment supporters. We can't cite any great judicial wins based on it though. (If you can, feel free to note them in the comments section.)

So while we don't think the 9th Amendment is likely to result in any critical criminal rulings in the near future, we're going to keep an eye on it anyway.