A Ninth Amendment Test Case

According to the Ninth Amendment to the U.S. Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

At first this looks like a conclusive argument against the complaints that the Supreme Court is following Amendment Pi of the Constitution, in magic invisible ink that only special people can see … until we consider the word “retained.”

A right to gay marriage, for example, was not retained; it was invented recently. On the other hand, a right to wear a hat (according to Theodore Sedgwick) was retained:

if the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have the right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.

Even despite the fact that a member of the First Congress described the right to wear a hat as a right that should not have to be enumerated, many states violate that right when it comes to issuing driver's licenses. This might be a suitable test case for the 9th Amendment.

I won't more than mention that driver's licenses also look problematic.