-- Wrongful behavior may be criminalized/prohibited -- but only if it invariably violates the rights of others.
Constitutionally, all liberty may be reasonably regulated (as opposed to prohibited/criminalized).
However. we must ascertain the scope of unenumerated rights to identify wrongful behavior that may be prohibited altogether.
Prohibitions on behaviors that only potentially affect the rights of others are violations of due process of law.
Mr. Justice Harlan described it eloquently:
". . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . --
Oops.....the title of his other analysis is "The Ninth Amendment: It Means What it Says". It is available for download here: http://www.bu.edu/law/faculty/papers/BarnettR082405abstract.html .
yer still around? this barnett guy is pretty interesting. i just got done reading this one:
Scalia's Infidelity: A Critique of Faint-Hearted Originalism
. He references Scalia's dismissive approach to the the 9th amendment:
another difficulty with Scalia’s normative defense of originalism: It would seem to justify judicial enforcement only of those passages of the Constitution that are sufficiently rule-like to constitute a determinate command that can simply be followed by a judge. The more general or abstract provisions of the Constitution are hardly rules that fit this description, so should they be ignored by judges? It turns out that, with respect to the Ninth Amendment, for example, this is precisely the view later adopted by Justice Scalia himself. In the case of Troxel v. Granville,16 he dismissed the unenumerated rights “retained by the people” to which the Ninth Amendment expressly refers as subject only to the protection of majorities in legislative bodies. But this puts him in an awkward position. According to his argument, justices must decide for themselves which clauses meet his standard of a rule of law and which do not, because only the former merit judicial protection. By this route, large portions of the Constitution become nonjusticiable by judicial fiat. For example, all unenumerated rights become judicially unenforceable
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BUMP
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Silly Conservatives. Don't you know that Liberals OWN the Constitution? They'll let you have a copy of it and read it, but you're too stupid to understand that it only means what they say it means, not what the text actually says. You're just not nuanced enough to understand such an important document.
The ninth doesn't protect anything unenumerated, it is just a reminder that Section 2 under the Articles of Confederation is still recognized and in force. Anything unenumerated is automatically dealt with through the tenth.