Ed Brayton fails to make a very important distinction in his 9th Amendment article. This is best highlighted by the following very short excerpt.

The thesis here is that the “unenumerated rights” referred to in the 9th amendment refers to the entire mass of individual natural rights. Those natural rights, argued Madison, Jefferson and many others, were pre-existing (that is, they exist prior to the formation of governments, which are instituted for the purpose of protecting those rights) and inviolable (that is, it is always unjust to violate those rights, regardless of what form of government violates them).

So what distinction is missing? The one between rights and desires. The 9th Amendment says that the federal government may not “deny or disparage” unenumerated rights, but that doesn’t mean everything that’s unenumerated is a right. What Brayton presents is a common false dichotomy: anything not explicitly delegated to the federal government is automatically allowed. Well, no. The natural rights to which he refers are not infinite. The works that defined the term “natural rights” provided specific reasons why specific rights should be considered pre-existing and inviolable, but did not include everything one might wish to do. The “right” to expose yourself to children, for example, is not a natural right. It’s not automatically sacred because the constitution doesn’t mention it. An argument must still be made, and not just assumed, that something is a natural right before it can be protected.

Brayton says that “Where in the constitution does it say you have a right to do that?” is the wrong question, and he’s correct, but after that he goes astray. The problem with that question is that it limits itself to the constitution, but the constitution was never the source of rights and that’s what the 9th amendment recognizes (even according to Brayton’s preferred interpretation). Instead, we should be asking, “Is that a right or just a desire?”