Brian Kalt has an interesting post that teases the role of Congress viz popular constitutionalism to define unenumerated rights under the Ninth Amendment:
The Ninth Amendment declares, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, listing some rights in the Bill of Rights doesn’t weaken the unlisted ones. The Supreme Court has never done much with the Ninth Amendment. Unenumerated rights are by definition difficult to identify—there are many theories, but no consensus, on what these Ninth Amendment rights are. Even when the Court concludes that a new right exists, it resists calling it unenumerated, instead contorting the law to find it somewhere in the Constitution’s text and its penumbras.
The Ninth Amendment has much better potential in Congress. Its message is important there, even if it has been forgotten: do not read the Bill of Rights as an exclusive list, with any sort of government action permitted as long as it is not specifically forbidden. This is particularly powerful when combined with Congress’s renewed determination not to leave constitutional interpretation solely up to the courts. Instead of Congress asking only, “Would the Court strike down this law on First Amendment grounds? Second Amendment? etc.?”, it can also ask “Do we think that this violates free speech? Gun rights? Any rights not specified in the Constitution?” The Court will still get its chance to weigh in on a law’s constitutionality, but only if Congress and the president first conclude that the law is constitutional and pass it.
Are unenumerated rights whatever some group (be it the Court or Congress) says it is, or are these natural, inalienable rights endowed by our creators? If they are the former, Kalt’s suggestion makes sense. This would effectively constitutionalize certain positive rights into the 9th Amendment.
There is something here for everyone: the right to abortion and the right to life; the right to health insurance and the right not to have health insurance; the right to class equality and the right to purely individual treatment
But, if unenumerated rights are the latter–rights instilled in the essence of people–this approach is slightly troubling. Entrenching rights based on the whims on majorities, without any concern for our constitutional framework, is quite dangerous. Once such a right is entrenched, it cannot be taken away. As I have noted elsewhere, many modern positive rights directly conflict with what I consider the unenumerated rights the Constitution, as originally understood (9th and Privileges or Immunities Clause) protects.
It’s interesting how talks of popular constitutionalism, so impressive following the election of 2008, have suddenly died down of late.