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bogus comments on Rationality Quotes Thread January 2016 - Less Wrong
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The Constitution protects all rights that are originally retained by the people:
If there is a natural right to gay marriage, the Constitution protects it. That is, the Constitution protects gay marriage to the extent that recognition of gay marriage is in some sense naturally required as a precondition of fostering "life, liberty, and the pursuit of happiness"; as are the rights to free speech and free exercise of religion, to self-defense and self-organized collective defense, and all of the other rights recognized in the U.S. Constitution. A natural right “is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” (United States v. Cruikshank, 92 U. S. 542, 553 (1876))
I like the Ninth Amendment too, but it's worth noting that the majority opinion in Obergefell v. Hodges cited the due process and equal protection clauses, not natural rights: one could argue that the rationale was absurd even if the outcome was correct.
So, the 14th Amendment protects "privileges or immunities." There's some of historical evidence of what those might include. But in the Slaughterhouse cases, the Supreme Court drained the phrase of any legal significance. There are many legal scholars across the political spectrum who think the Slaughterhouse cases are inconsistent with original public meaning.
Those scholars who think Obergefell, Roe, and such are consistent with original public meaning tend to say that "substantive" due process should be understood as code for "privileges or immunities."
Huh? What would the word "protection" in the latter clause refer to, if not protection of natural rights?
It's a controversial position that natural rights are what the Constitution protects, even among legal scholars who think the Constitution should be interpreted according to original public meaning (most "originalists").