The attorney general of Virginia has also launched a separate lawsuit on similar grounds.
Rob Bishop of Utah. In , Congress established Medicare and Medicaid with majorities of more than 70 percent in both chambers. HIPAA led to increasingly costly regulation and did not reduce the growth of health spending.
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The first was to find such a right in the Fourteenth Amendment, arguing that a right to privacy had the same standing as the right to marry or parental rights under the Due Process Clause. That alternative was very likely rejected for fear of a return to Lochner, and no Court wanted to go there. Relying on the Ninth Amendment can resolve a number of the constitutional puzzles in which the parental-rights cases play a curious role.
It also offers a way to reconcile the economic liberties and personal liberties cases under one conceptual umbrella, and one that is actually in the text of the Constitution. Many present at the drafting of the Bill of Rights wanted to avoid that interpretation and make it clear that just because they had listed a whole series of rights in what are now the first eight amendments, later generations should not take that list as exhaustive.
Barnett argues that the historical context out of which that argument rose was one in which people were believed to possess certain natural rights prior to the creation of a constitution and government.
Ninth Amendment to the United States Constitution
Even as they agreed to institute a government for the purpose of enforcing those rights, they did not give up those rights to the state. As Barnett sees it, the Ninth Amendment just confirms that view.
The same could be said of the recent decision in Lawrence v. He there makes the case for grounding the right to marital privacy and the consequent right to purchase contraceptives in just this sort of reading of the Ninth Amendment.
Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so.
Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution.
"Book Review: "The Lost History of the Ninth Amendment"" by Thomas B. McAffee
Uniting all of these unenumerated rights in the language of the Ninth Amendment would have three salutary effects:. First, it would provide a grounding in the actual text of the Constitution for the idea that unenumerated rights are deserving of constitutional protection. That might have the consequence of avoiding the charge that judges are inventing constitutional language that does not exist in the text.