Rules of Engagement

Decent episode with Wendi McLendon-Covey shining. 

Dorothy Toth Beasley

Beasley was 0-3 in her early 1970s Supreme Court orals, her first against another woman advocate with a softer voice.  She lost in Furman v. Georgia (death penalty) and Doe v. Bolton (abortion).  She later became a state judge and continued to be honored for decades.

Exotic Animal Tragedy and Accurate Reporting

 

Both the woman and the operator seemed surprisingly calm considering that it was not merely a bear and a lion but 56 exotic creatures — a fierce menagerie that included wolves, monkeys and 18 Bengal tigers, an endangered species whose numbers total less than 3,000 in the wild — that had fled their cages on a 73-acre private reserve. Friends described the couple who ran it as animal lovers, but they also had a history of run-ins with the authorities.

Rachel Maddow had a report on this tragic story with Jack Hanna -- the goofy sounding animal expert that is a repeat Letterman guest -- as a guest.  It was atypical to have someone preface their remarks, especially before (as she often does) she asks if the report was all correct, with various corrections.  There were a couple trivial detail matters, but he also disagreed with her suggestion that it was partially a matter of politics -- the previous governor's executive order allowed to lapse, the suggestion being (with another bit on some testimony to Congress) it was allegedly a matter of too much regulation and hurting business.

This might be a case where Maddow's standard approach was not quite appropriate.  It seems that the ongoing story had some unclear details and the segment was hurt with a bit too little due diligence.  For instance, mention was made of the main person involved who apparently committed suicide and for some reason let his animals out of their cages, but not to his wife, or who cared for the animals when he was in prison (it is not clear when he obtained the animals from the segment).  It is curious that Maddow didn't thank Hanna (who was firm but polite) for his clarifications, which I think should have been done.  An article reaffirms what Hanna said respecting the need to find a way to legally put in place the regulations, including having the personnel to do so:

Ohio Gov. John Kasich this year let expire an executive order passed by former Gov. Ted Strickland banning exotic animals in Ohio because the order was not enforceable under Ohio law, said Bill Damschroder, ODNR’s chief legal counsel. Ohio Revised Code gives ODNR the authority to regulate only species that are native to Ohio, he said.

The opening quote is from the NYT, which also includes a YouTube clip of a press conference, toward the end Hanna defending the actions of the local law enforcement.  On Maddow, a clip showed how upset Hanna was, him shaking his head while the sheriff spoke.  The coverage (see also) does underline the importance of the right amount of government regulation, which was part of Maddow's point.  Ohio, according to one of these stories, is one of less than ten states with such lax regulation of exotic animals.  But, it wasn't like anti-government Republicans only were involved here.  And, Kasich appears to have done the right thing in this case, though the specific details might raise questions. 

In effect, the matter fell through the cracks, federal law not involved because compensation (interstate commerce?) was not involved.  Animal management is largely up to the states and Ohio (per the the chief executive of Born Free USA) is thankfully atypical on this front regarding exotics.  The individual here was known to be trouble for some time according to the coverage, so the legislature had time to address the situation.  They did not and the result was "just terrible” and "senseless," it "was nonsense" and it "was crazy.” So, said the sheriff.  And, humans could very well have been harmed as well. 

Proper regulation of animals is essential not only to respect their well being, which as creatures with meaning and value is reason enough, but to protect the well being of us all.  When amateurs are allowed to have exotic animals for pets or other reasons, it is generally a bad idea, worse with such lax oversight. 

Cards Win

Cards starter goes six, key pinch hitter comes in and hits in the clutch again and the bullpen does the rest.  Game turned on inches. Oh, still looked like he hit the ball off his foot in the ninth. Did Texas get 26 outs? Texas better hit better against the other starters. 

More on Ninth Amendment

[I am told, per the morning comment, that Body of Proof episodes were run out of order, so the first two episodes of the second season are "after" the last one. That explains a bit about the dynamics between Megan and her boss and I hope the superior first two episodes will be the true augur of how the season will go.  More polished and everything.] 

The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come within the meaning of the term "liberty" as used in the Fourteenth Amendment.

-- Doe v. Bolton (Justice Douglas)

This interesting concurrence to the companion case to Roe v. Wade, along with Justice Stewart's concurrence [Justice Stevens in his book finds it superior in expressing the core holding] to Roe, provides a bit more teeth to the "right to privacy" or "liberty" interest involved than Roe itself. Many are misled regarding what the main opinion said, which is better than many critics give it credit for, so it is not surprising less people are familiar with these concurrences. This is unfortunate.

I noted  my re-reading of a book on the Ninth Amendment; it led me to skim another (more academic) book, Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights by Calvin Massey. A promising aspect of this book is that it provides some more history and some technical discussion on application. The latter is more controversial -- I'm not really supportive of its mechanism (the reader can decide) -- but it's worth thinking about. The book was written in the mid-1990s, so putting aside my summary here is quite brief, perhaps his views developed somewhat. To toss that out.

It is curious that early on we are told that we cannot "disparage" the rights involved by (see Justice Scalia or Judge Bork) assuming judges cannot enforce them, but can in effect treat them as second class citizens by making precedents involving them somewhat weaker and more open to review if the legislature suggests the courts were wrong. Is this something like how the liberals on the Supreme Court think gun rights are weaker? The argument is that the rights are either found in state constitutions or "moral rights" that are never set in stone. [The other book also cited international law and a broader sense of "international natural law" is discussed here.] But, the same can be said about various other rights (such as equality) for which our understanding develops over time.  Still, in practice, the Supreme Court has been somewhat wary about unenumerated rights, including attempts (see, e.g., Griswold) to connect some to enumerated ones. 

It also offers an interesting concept of "cy pres" where the amendment is respected even though the original understanding of its reach can arguably no longer realistically be applied. The original understanding focused on powers, it argues -- if the federal government did not have the power to do something, rights would be retained.  See, e.g., how the First Amendment focuses on the power of Congress.  This might help explain how the Tenth Amendment ("powers") continued to be cited while the Ninth Amendment seemed to be almost forgotten. We focus more on rights these days.  And, I think "right" adds something more, including some governmental obligation to protect  (something "right" or somehow a moral good)  that merely having the power to do something might not.  But, either way, we still can respect the core meaning of the Ninth Amendment, even in an age of expansive governmental powers. I think the "cy pres" concept can be applied overall, "original understanding" a matter of broad principles with varying specific application. As Justice Stewart cited:

Great concepts like . . . "liberty" . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.

There is a fear that this results in "judicial activism." Or, per Justice Black, "merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive." But, open-ended provisions, including the Ninth Amendment, requires some sort of judgment that at some point boils down to such things. Take Massey. He would allow states some power to determine the reach of the "retained rights" (originally deemed protected by statutory and common law ... the former he argues largely translated to state constitutions), but not when certain fundamental rights and principles are violated.  If we have judicial review, which has been deemed important since the end of the 18th Century, judges will have a lot to do with this, sometimes (see the 4A) being required to give meaning to things like "unreasonable." 

As I said in the past, "fundamental" rights is a term expressed for quite some time in various legal rulings. Case by case, throughout "this Nation's history and tradition," helped by constitutional text (e.g., the Fourth Amendment references an aspect of privacy, the warrant requirement not the only way it is now protected) and structure (e.g., separation of powers or republican government assumes certain things), references like "intrinsic human rights" pop up. Hundreds of years of judging continues, even if some don't like the inexactitude.  Different ways, down to use of equal protection to protect certain "fundamental rights" (one contraceptive case was explicitly a matter of treating unmarried and married couples unequally)  are used. And, yes, judges will have discretion, who and when (1900 v. 2000) affecting the result. 

The books referenced and others who point to the Ninth Amendment or the Privileges or Immunities Clause etc. raise the concern at times too. They don't find "substantive due process" satisfying. As seen by a footnote in Douglas' opinion, the problem is partially its taint, the fear it will be "a vessel to be filled with one's personal choices of values" and the fact that some other "cleaner" way to protect substantive fundamental rights is present. People still think the former all the same when other techniques are used and even a causal study of the law suggests the latter is a misguided quest best left to Don Quixote. No one panacea is available, though each provision can help toward the ultimate end.

The opening quote is intriguing. Douglas doesn't press the point, but as with the also thin Griswold opinion, it has bite. Like the First Amendment, the Ninth does not "create" rights -- the idea is that the rights were there already. The connection to "blessings of liberty" provides a bridge, even if he matured in an age when the term was a dirty one since it was largely used to strike down (if not as much as assumed) economic regulations, to substantive due process. The "liberty" now deemed to be protected by that is given meaning in large part by tradition and custom, both which develop over time. As the article cited notes, "natural law" is akin to less controversial pure scientific laws such as quantum mechanics. Both are falsifiable, which means our understanding of them can change.

It would be interesting to know what part of the Ninth Amendment is not part of the "liberty" expressed in the Fourteenth Amendment. Does the "life" and "property" components or perhaps the "citizenship" provisions add other content? Anyway, the basic idea of the Ninth Amendment -- even if the specific way it is done changes and is open to debate -- remains the same. There are various rights that are not expressly found in the Constitution, rights that must be given protection to truly protect our freedom, even if passed by majority vote (which the book is correct to note can be misleading given the nature of the political process). These rights are expressed and protected in various ways, in no totally clean fashion. It is a fool's errand to think it is possible.

But, the bottom line is clear, and even the likes of Scalia and Black in practice show it via acceptance of precedent, broad understanding of text (cf. Justice Harlan's view on "one person, one vote," which Black thought crystal clear by text treated otherwise for quite some time) and so forth. A too limited view of this ethos will get you in trouble -- right Robert? -- even though an honest expression of the complexity and inexactitude involved will also often tend to do so.  Life is messy.* But, as Douglas noted in another separate opinion:

Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights.

And, will continue to be.

---

* Consider Lochner v. N.Y., used by both liberals and conservatives in various ways as a warning of the dangers of lack of proper judicial restraint and of substantive due process as a whole.

Justice Holmes' dissent is now deemed by many to be the correct path, but even he noted that when "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law,"  the federal courts CAN "prevent the natural outcome of a dominant opinion" from being carried out pursuant to the "liberty" protected.

The test, shades of Coke, involves judges using "artificial reason" to determine what is against "common right and reason," even if a king or "the people" determines short term otherwise. Judicial review is a lot easier that way than the 1776 path. 

Body of Proof

I mentioned how I enjoyed this show but -- after a pretty good start -- it is slipping by having an uncomfortable overdose of personal stuff, usually of the "very special episode" variety, such as being adopted or a sibling killed. The actors don't even seem comfortable.

Hindoo Holiday

I wrote about J.R. Ackerley's other works, but this was not as enjoyable -- no Tulip and a bit too thick. This account of his trip to India in the 1920s as the personal secretary to the maharajah of a small Indian principality still has charm. But, not into it.

Miami Plays Like 0-4

Three red zone possessions result in six points, seven the other way via a 100 yard interception return. Jets made it 14-6 right before the Half, they finally having a good offensive drive and it's 24-6 early Fourth Quarter. How to beat a bad team. Next week, a real team.

Alito Balances

Justice Holmes gave a sharp retort: “That is not my job. My job is to play the game according to the rules.”

The Constitution is in place to "establish justice" (Preamble), so if Alito wants, "doing justice" works, whatever Holmes allegedly said.

Brewers Collapse

Phils' starters didn't do it (again), though the final game was 1-0. The Cards ace followed with a five inning effort, the only starter getting a win in six games. The Brewers were messy, starting and fielding. Bats couldn't handle the relief corps. Good season, sad end.

(Beating Head Against Wall)

After Volokh Conspiracy and Scotusblog (THIS is what you use for your new message board? how original), now Balkinization is overdoing it on the PPACA (one single part really) stuff. Including the missing the damn point part. Easier to talk past each other that way.

Eyes Like Stars Trilogy

As noted here, I enjoyed the first book about a teen mixed up with Shakespearean characters and such. But, the sequels weren't as good, plodding really. Disappointing after that start.

Sports Update

Detroit (particularly the Tigers) ended things badly, Giants had a pretty good game against real competition, the Jets weren't helped by Dallas blowing it late, but Philly helped even things out by beating the Redskins. Cards game is a mess. They should win. [Go Texas!]

Amanda Ralph's Child

The first sentence of the article: "Amanda Ralph is the kind of woman whose babies are prone to die."  When we hear about "value voters" and the need to do such and such to deal with something that led to three thousand deaths or whatever, things like this comes to mind:

The unusual attention Ms. Ralph is receiving is one of myriad efforts being made nationwide to reduce the tens of thousands of deaths each year of infants before age 1.

These days, I can relate when such things seem "frequently disheartening," but we trudge on, trying to keep our priorities in order. Merely cutting government and lowering our taxes, not mine. Caring for the health and well being of all, the "general welfare," not attacking "Obamacare" is.

RIP Paula Ettelbrick

And Also: A report that Obama is sending some forces to Africa brings to mind "one more place, huh?," but actually appears to be pursuant to a law passed a couple years ago. Don't know if the backers thought it through, but that's another thing.

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.

-- Lawrence v. Texas (quoting Justice Stevens)

Lawrence overruled Bowers v. Hardwick, which had a more limited view of intimate association. Griswold v. Connecticut started a line of cases that protected sexual intimacy and the rights of families (such as parental rights and a grandmother living with nephews). The right of unmarried people (even minors) to buy contraceptives was also recognized, but the Supreme Court was wary about taking cases that took the point that far. Various lower court opinions on such questions as cohabitation, fornication, female teachers breaking "morals" requirements and so forth underlined the issues raised by the sexual revolution. Lawrence in effect cemented the deal.

Society has built off more limited ideas that such choices should be tied to marriage. In the days of Jane Austin, see Emma, just writing to a member of the opposite sex before you were at least engaged could be a major social taboo. Now, unless you live in Saudi Arabia, such intersexual socializing is accepted. The importance of equality, including in respect to same sex marriage, should not lead people to have a "one size fits all" mentality as shown by another major gay/lesbian activist [Paula L. Ettelbrick] who recently died:

“When analyzed from the standpoint of civil rights, certainly lesbians and gay men should have the right to marry,” she wrote in the fall 1989 issue of Out/Look magazine as part of a debate with Thomas B. Stoddard, a colleague at Lambda who strongly favored same-sex marriage. “But obtaining a right does not always result in justice.”

I sometimes read during same sex marriage debates that the best path was simply (uh huh) to end state sponsored marriage overall, a type of major structural change that is more late night college debate topic than likely to happen any time soon.* But, it is not totally off the wall, since in various ways, marriage is not required for those in long term relationships, who raise families or join together for various purposes, such as two siblings who have a home and care for each other. And, the law in various ways -- including definitions of "household" for rental purposes -- recognizes the fact. There are various "beyond marriage" movements noting the fact, see also Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Amazon notes:

Topics such as inheritance, tax consequences, workers' compensation death benefits, social security, probate, adoption and health care, plus their impact the diversity of today's family units are simplified for the reader.

The movement for liberty and equality for all is not about any one issue, important as it might be, and those with a broad vision are to be respected. After all, even Rachel Maddow, who has had a long term same sex relationship with her partner, is not only a stronger supporter of same sex marriage rights, but doesn't think the choice is right for her at the moment. Maddow in a recent interview said she was wary of one size fits all sentiment on that front. Many long term unmarried different sex couples would fully agree. And, NPR recently had a nice segment about an unconventional (heterosexual) couple.

---

* If a candidate, such as Mitt Romney, opposes same sex "marriage," they need to be asked if they think civil unions are wrong as well, including when governmental benefits such as social security and bankrutpcy are involved. A recent answer that he is supportive of giving them hospital visitation rights doesn't quite do it.

"Class" Health Care Provision Roadblock

The program was intended for people with severe disabilities who wanted to live in the community, though benefits could also have been used to help pay for nursing home care or assisted living. It would have been financed with premiums paid by workers, through voluntary payroll deductions, with no federal subsidy. Premiums were supposed to have ensured the solvency of the program over 75 years.

The inability (at the moment) of the Administration to put in place the "CLASS" program is being used by Republicans to show the problems with the PPACA as a whole. The fact that they (the darn spend-thrift socialists) determined it could not fiscally be applied, however, underlines the overall fiscally conservative nature of the whole affair. Maybe, if Republicans weren't assholes and did more to work with the Democrats to pass such a moderate piece of legislation, it could have been better?

A voluntary program for clearly needy individuals with a fiscal check (put in by a Republican amendment (poison pill?) -- amendments one area where Republicans did take part) does not seem to me the best part of the law for them to target. In fact, the problems with the provision underline overall Democratic arguments. For one thing, it shows the importance of the individual responsibility provision (the "mandate"), a purely voluntary set-up not enough to cover the costs. As a Businessweek artice noted:

Because it is voluntary, Class faced a “problem of adverse selection,” in which only people who need the insurance, or think they will, would sign up, he said.

A major piece of health legislation, especially one passed in troubling conditions (Republican obstructionism resulted in bad policy decisions, or rather, not as good ones to enable passage), is going to go through some growing pains as it is put in place. But, it could also be that -- as with the underfunded stimulus package -- that there were too many restraints, resulting in not as good policy. Our system is set up to be conservative in various respects, but the current system (particularly with how the filibuster is applied) can be too conservative. As one expert noted:

“The aim here was a good one,” he said in an interview. “But the program as written in law was over-constrained.”

I will let the experts determine the logistics here, but it seems to me that the problem is that purely voluntary overconservative techniques to serve the needs of the public are problematic. Republicans should be a bit wary about being too glad about what happened here.

Tricky Strip Search Case

Albert W. Florence was held for eight days in two counties on a civil contempt charge, even though he had paid the relevant fine.

In the process, he was strip-searched twice.

“Turn around,” he remembered being told while he stood naked before several guards and prisoners. “Squat and cough. Spread your cheeks.”

As discussed here (with the link to the NYT article), this case goes beyond the broad policy at issue.  As the advocate for the policy noted, on some level it seems reasonable to have a blanket policy regarding searches for those you put in general population at a prison.  He admitted that the person shouldn't have been arrested, surely not held for eight days.  But, that isn't the specific matter at hand here, nor the fact that race and other illegitimate factors will um "color" who is arrested and detained. 

But, maybe you have to deal with that reality, particularly after the Supreme Court (5-4, Souter and O'Connor in effect switching roles)  rejected a line where a mild traffic offense would not be subject to imprisonment (seizure).   If you are going to detain trivial offenders, who you shouldn't anyways, before you require them to strip in front of you and bend over to expose their genitals, have some sort of reasonable suspicion.  After all, assuming that just because they are being detained was controversial in the 1970s, the Supreme Court splitting on the issue 5-4 (Powell joining the dissenters on the point)  even after contact visits. 

Sotomayor and Alito, who in one fashion or the other actually dealt with prisoners in the tri-state area, were somewhat concerned about a per se rule given the trivial nature of some of the offenders caught up in the mix here.  And, as a matter of policy, some degree of reasonable suspicion was in place by federal and various state practice.  The petitioners wanted to draw a line at minor offenses, other offenses basically assumed to have suspicion.  The dissents in the cited case, admittedly dissents, would have gone even further, requiring some sort of individualized suspicion across the board.  But, for a person like this, especially since the state is allowed to view them in the shower or have medical personnel check them, there is little real reason to suspect contraband. 

Would someone picked up for some simple possession charge have drugs in their anus or a razor blade there?  There is always a fear that someone might, particularly perhaps a homeless person or some other sort who is picked up for a trivial offense but has something hidden for some reason.  A few justices noted there actually was not much evidence of this though.  But, it's a hard call -- the real problem really is that he shouldn't have been arrested and surely not kept that long.  Attacking this policy is really a sort of indirect means of addressing the real issue.  After all, this is a violation of privacy, just as drug testing is in a different fashion, but the eight days in prison probably was worse in the long run.

The case of a teenage girl being told to strip to her bra and panties because of suspicion she had prescription-strength ibuprofen pills on her person was a pretty easy case and even there the Supreme Court did not set in place a totally clear-cut rule.  The chance that five justices would find the policy here illegitimate is questionable though the opinion might set some guidelines that put some limits in place.  For instance, the prison's lawyer drew the line at contact searches -- that is, snapping on some gloves etc. would be quite different.  Some chance of one or more concurrences or possibly a partial dissent of some type.  But, a win is something of a long shot.

This is probably the best case so far for the general public to listen to, the link above providing text/audio matching.  Supreme Court transcript here with multiple audio platforms and a chance to download for later. 

Baseball Update

The Brewers had a "Burnett" moment, their iffy starter having a good game to make it a series at 2 all. Verlander made it through 7.1, the .1 a bit ill advised, but Detroit survived. 3-2, Texas.

Health Care and Abortion

The desire to deprive women of health care involving abortion as an option is yet another bugaboo in this country.

-- Health Care and Abortion

Yes. Unlike some representative said during the floor debate earlier today, abortion IS health care, particularly when women (or girls) are "confronted with a choice between two serious harms: serious health damage to themselves on the one hand and abortion on the other." You might not LIKE the choice to undergo this medical procedure, done by doctors to protect the health and well being of the patient. But, if it isn't "health care," what is it?

It is duly noted that the government is now (wrongly) allowed to discriminate by religious and moral belief and deny funding even to those who require an abortion to prevent various significant health concerns. At least admit what you are doing as you try to deprive needy individuals of protections in extreme cases or deny individual choices respecting health insurance. The type of emergency care at issue here covers the extreme cases even many strong pro-life types would admit are tricky situations. Likewise, many against abortion would realize that health plans include coverage of things they personally oppose.

It is a tad annoying that we are supposed to find it perfectly acceptable to use government money to pay for religious education because the overall plan is "neutral" and individual choice is involved without it being an Establishment Clause issue, in fact to do otherwise would violate the Free Exercise Clause, but individuals can't make their own health care choices in disfavored areas. Then, it is a problem because the government is paying for abortions. Not the individual by means of her own health care choices, such as those who decide to have a child in other cases. They are okay, Their moral and religious choices are acceptable. Thanks, Father GOP.

Abortion is a deeply personal choice that some people find immoral in various cases. But, it is a personal choice, just like most health choices are inherently personal on some level. The Hyde Amendment is bad policy, if not probably unconstitutional (just like a few states have found it to be pursuant to their own constitutions when the states deny funding selectively that way), but we are stuck with it for the moment. The Republicans will continue to try to make things worse.

The fact Obama has promised to veto this latest version even if it somehow managed to get through the Senate (it is not likely to) underlines (yet again) why it pays to have him as President.

RIP Frank Kameny

The federal government began to target homosexuals as "enemies of democracy" by labeling them a threat to national security. One of the many men and women who suffered from employment discrimination was Dr. Frank Kameny, a Harvard-educated astronomer and professor. In 1956, Kameny was terminated by the Army and barred from federal employment for several years following his alleged solicitation of sex from an undercover police officer. When Kameny unsuccessfully sued the federal government, the Supreme Court denied certiorari. The Court's failure to hear Kameny's case points to society's general fear at the time to hear, let alone debate about, potential civil or legal rights for gays.

-- "The Progress and Pitfalls of Lawrence v. Texas"

Frank Kameny, a great in the gay liberation movement, has just died. His motto was that if he and society clashed, he would examine the matter once, but if they still were in trouble, society is the one with a duty to change. Worked fairly well, up to a point. The case cited is somewhat interesting -- a look at the appellate ruling rests on neutral grounds. No reference to homosexuality per se. There is danger there, societal prejudices can be given a pass that way. But, such neutrality could eventually pay dividends, when truly honored.

Lawrence v. Texas rested on substantive due process with an equal protection gloss. I am re-reading a book on the Ninth Amendment, another way to look at the question. To quote a rare case of a Supreme Court opinion (not just a concurrence or a passing mention)* that honored it: "The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined." The principle has been repeatedly upheld in various ways from time to time. For instance, 1870s:

There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

The book [Retained by the People: The 'Silent' Ninth Amendment and the Constitutional Rights Americans Don't Know They Have] argues that we should use Supreme Court precedent establishing rights or analogous rights, connections to specific constitutional guarantees, longstanding traditions, contemporary societal consensus, decisions by American lawmakers and judges, general American traditions and international norms to give meaning to them. As with the Second Amendment, there has been various scholarly discussion, this volume more geared to general audiences. Recommended.

---

* The reference is actually found in a plurality though Justice Brennan joined the famous Griswold concurrence (worked on by law clerk Stephen Breyer) and Marshall surely agreed with the sentiment too. The Casey (abortion) plurality also referenced the Ninth Amendment. Basically, the references give further backing to the use of substantive due process.

To remind:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.