The Cato Institute has an analysis of current conservative judicial thinking about those rights not enumerated in the constitution. Using Charles Schumer's questioning of a current 3rd Circuit Court of Appeals candidate over his legal basis and interpretation of Griswold that found a right of privacy in marriage and thus struck down a ban on the purchase of contraception, Roger Pilon proves an interesting point. Currently Scalia and in another venue Bork hold a position that makes the 9th Amendment a nullity and thus their position is untenable.

The analysis certainly sheds light on the ability of the court to apply stare decisis beyond the Constitutional framework using English common law and acknowledging the dangers of majority tyranny. The majority tyranny analysis of the Madisonian question are worth reading this article alone.

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