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The evidence Ed requests is voluminous. Second, the proposition Ed rejectsin totois that there are certain unenumerated rights that are of constitutional dimension and that are judicially enforceable but that are not in fact inferable from the text of the Constitution itself. I never said that those rights were not inferable from the text. To the contrary, the text of the Ninth Amendment, with emphasis, states plainly that The enumeration in the Constitution of certain rights shall not be construed to deny or disparageothers retained by the people. One cannot retain what one does not first have to retain. And if the text alone were not enough to cementconstitutional recognitionof rights retained by the people, the well-known history behind the Ninth Amendment only buttresses that recognition. Once it became clear that a Bill of Rights would be needed to ensure ratification, the problem posed by the inability to enumerate all of our rights had to be addressed; for the interpretive canonexpressio unius est exclusio alteriuswould be invoked, Federalists feared, to limit the rights protected to those that were enumerated. Indeed, that result largely has come to pass, precisely as the Federalists feared, notwithstanding their having added the amendment to guard against it. And it has because people like Ed have ignored both text and history. Thus, the misreading Ed mentions is by him and those in his camp. To be sure, the Ninth Amendment does notspecifyrights; but beyond a certain level of generality, neither do other amendments. There, too, judicial understanding of the theory of the Constitution its theory of legitimacy, grounded in the background theory of rights is essential if the document and its principles are to be applied correctly.
For [link] the original version including any supplementary images or video, visit http://www.fed-soc.org/publications/detail/abigail-alliance-v-von-eschenbach