Here's a quick Constitutional law quiz: Name the last case in which the United States Supreme Court ruled that the Ninth Amendment was a substantive limit to the reach of the Government power.
Having trouble? Let's change the angle of visions, then. Name the first.
If you are stumped, there is a reason. The Ninth Amendment is a dead letter in American law. If there is a case in which a majority of the Court has ever given the Amendment teeth, I missed it.
The United States Supreme Court agreed this week to hear the case of Gonzales v. Oregon, a federal challenge to Oregon's physician-assisted suicide law. The law was upheld last fall by the Ninth Circuit. In Oregon, a doctor may help a terminally ill patient die. This is a classic example of a state's exercise of its police power to assure the health and welfare of its citizens.
How did the federal government stick its nose under this tent flap?
The feds are pressing an interpretation of the federal Controlled Substances Act that limits the use of such substances to "legitmate medical purpose." Doctors who help terminally ill patients die violate that act, saith Uncle Sam. Except, of course, when the Government wants to kill someone, in which case it is all right. Side note: Do death row inmates have a right to die? Devil's Advocate
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
That's the Ninth Amendment. It speaks of a government of limited powers, and of a free people yielding only so much authority over themselves as has been expressly granted. It reminds the Government that silence is not an invitation to tyranny. Put another way, just because only certain rights are referred to in the Bill of Rights does not mean that we have forfeited everything else to the State.
The Oregon case is a perfect case to test the Ninth Amendment. I hope it is briefed and pressed. It is obscene to be required to petition the Government for the right to die. Death is, alas, akin to a duty; it is the price Nature exacts for the joy of living.
A right to die? Silly. Rather, by what right does the Government say live you must?