The US Constitution is one of enumerated powers. Meaning, if it is not there, it is not suppossed to be. Scalia would clearly feel most comfortable if the approach to rights was the same. But the 9th amendment says there might be others. Scalia says that is not for the court to decide, but if not the court, then how? The people are suppossed to be soverign. And they speak through the legislature. So does that mean we write a law declaring a new right, and then wait for the Supreme Court to either affirm or deny?
I don't know.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
United Public Workers v. Mitchell (1947)
9th or 10th amendment could not be used to challenge enumerated powers of the government
Griswold v. Connecticut (1965)
Marital privacy is a fundamental right not enumerated in the Constitution
Troxel v. Granville, 530 U.S. 57 (2000)
Supports a "Parental Right" to control the upbringing of their children in affirming a lower court decision denying grandparent visitations in excess of what is comfortable to mother.
Scalia, while in support of the outcome, files a dissent about the use of the 9th amendment to create another right. "The Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."