If there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from infringment?
I don't think that the court can without engaging in a constitutionally dangerous game of peering into the shadows eminating from the first eight amendments.
The court's divination of a privacy right didn't need the Ninth as a basis for such a right. The Griswold Court found such a right from the first eight rendering the 9th unnecessary. Hence, if you cannot find a right in the first eight, the ninth doesn't all-of-a-sudden make it appear.
Not really. My issue involves the divination of such a right from the first eight amendments. This is a reflection of the danger I just noted above. Hence, my problem ain't the abuse of such a right by the Courts, but the abuse of the Court's power to divine such a right in the first place.