[republicofdavis]

I don't disagree with anything you say. My only point is that the unenumerated rights of the Ninth can depend entirely on the whim of the judges if there is no framework for articulating those rights. Right to smoke/Right to commit sodomy. Two sides of the same judicial coin.

[tahiti]

"My only point is that the unenumerated rights of the Ninth can depend entirely on the whim of the judges if there is no framework for articulating those rights."

Unenumerated rights depend upon entirely on the citizen making the claim in a court.

The judge just acknowledges the citizen's claimed unenumerated right by nullifying a law that violates such a claimed right.

I currently ride my motorcycle in a the State of Missouri without a helmet. Missouri has a helmet law.

It is only a matter of time before I get a citation for violating that unconstitutional law.

I contend and rightly so, that I have the "retained" right to decide whether I will wear a helmet or not.

I am a citizen making an "unenumerated" right claim.

[eno_]

Right to smoke/Right to commit sodomy. Two sides of the same judicial coin.

There is nothing unclear about this: If the government isn't authorized to regulate it, laws that regulate these behaviors are illegal, illegitimate, and, as has been shown over and over in the case of unconstitutional laws - they are no law at all, and nobody has a duty to observe them.