Matt

“The absolute latest date where judicial review became a generally recognized tool of government is 1803, with the famous case of Marbury v. Madison. There is an incorrect but popular notion, not so much among scholars but among lawyers and the general public, that judicial review was “invented” by Chief Justice John Marshall in that case.73 But the evidence demonstrates that judicial review in fact goes back earlier to at least the framing of the U.S. Constitution. And arguably, at least as an idea, back to inventive common law judges in England, especially Lord Edward Coke (pronounced “cook”).”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“In later unenumerated rights cases the Supreme Court has, for whatever reason, shied away from Justice Goldberg’s suggestion. That has not prevented it from using tests looking to “traditions” and the like for “fundamental rights” worthy of its protection, such as in famous unenumerated rights cases like Roe v. Wade (abortion), Troxel v. Granville (parents’ right to direct the upbringing of their children), or Lawrence v. Texas (right of same-sex intimate sexual conduct).59 But in none of those or related cases has it invoked the Ninth Amendment beyond, at best, a passing reference. Thus, Justice Goldberg’s undeveloped but interesting thoughts on the matter are the only more than transitory statements on the Ninth Amendment from the nation’s highest court.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“demonstrates a belief in popular sovereignty, something commonly held at the time of the U.S. Constitution’s adoption. This view of the legitimacy of government asserts that sovereignty did not reside in the federal or state governments, but ultimately in the people themselves.65 The people can delegate their sovereignty however they wish, either through enumerated powers (à la the federal government) or general powers (à la the states). They could also, presumably, delegate no powers to any government and live in complete anarchy.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“Thus it could be argued that the Baby Tenth exempted out of the state’s general powers the broad rights that the Lockean provision protected, such as the right to pursue happiness.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters