[jawns]

I'm quite aware of that amendment, but here's the problem.

Some of the founders were concerned that by listing out some rights in the Bill of Rights, they would be treated as an exhaustive list and used to deny other rights that were not explicitly listed. So Madison proposed the Ninth Amendment as a way of indicating that it's not an exhaustive list. We see this approach in a lot of modern legal contracts, where the phrase "including but not limited to" is used.

But the practical implication of this amendment is that it gives the judicial branch nearly carte blanche power to say what additional, unenumerated rights the Constitution does or doesn't protect. And once the court makes a pronouncement that an unenumerated right exists, the only way to overrule it is to ... you guessed it ... ratify an amendment!

But that creates a very strange setup. SCOTUS "discovers" these unenumerated rights because it's too difficult to get an amendment ratified -- but the sole check on their authority is ratifying an amendment to veto their ruling.