You said to me . . ."I know you like to look to Amendment 9 to find extra-textual (unenumerated) rights, as apparently some legal scholars do the same."
Could you possibly tell me what you mean by that? If you could tell me what you think I'm looking for or seeing in Amendment 9 or what you are, I have a funny feeling it very well may clear up a ton of misunderstanding on this thread.
The concept of "Unenumerated" rights (the citizenry's or People's rights) as its defined in Amendment 9 is extremely important to me, not so much in what it exactly says but in the way that the entire US Constitution is constructed and written vis-a-vis the Bill of Rights or certainly this particular Amendment.
Tom, these are not really easy issues to address in a simple and concise manner.
I will try to give you my understanding of the 9th Amendment's relationship to the Bill of Rights and the Constitution, why it was added, and what it was meant to do. Then I will go from there. I apologize if much of this is remedial for you.
At the time of the founding, most sovereigns had limitless power over their subjects except where their power was specifically limited by doctrines or tradition. Some of the founders very much wanted to turn this structure on its head, so the Constitution was created as a GRANT OF POWER (as opposed to a limitation on already existing power.) The founders envisioned a Fed. Govt. that had absolutely no power at all, except for the specific powers that the people (through the States) specifically granted the Fed. Govt. in the Constitution.
Since the Fed only had the powers that the people gave them (through the States), many felt that the Bill of Rights was unnecessary. To give an oversimplified example, freedom of speech was unnecessary because the Constitution did not grant the Fed any power that would put the Fed in a position to impinge on freedom of speech.
More importantly for this discussion, some also believed that a Bill of Rts was actually dangerous to the very structure of the government they were attempting to create. Basically, founders were afraid that if they started limiting the Feds power by awarding the people unnecessary rights, the Fed would interpret this to mean that they could do anything it wanted so long as it didn't violate the enumerated rights. They were afraid that the Fed would stomp on the rights of the people (some from state constitutions) like the British did. They did not want to return to this type of government, and did not want to risk the "grant of power" basis for our Fed.
I think it was Madison who suggested the 9th Amendment in order to calm these fears and to insure that the Constitution remained a grant of power, and that the Fed's power consisted of only powers that the Constitution specifically granted.
So, many consider the 9th amendment a guidepost or reminder on how to read the Bill of Rts. in the context of the structure of the Constitution, and a guarantee that the Bill of Rights would not be used to increase Fed power.
Turning to what I think you think the 9th Amendment means; to be honest I am not sure I know what you think, but I will give it a shot since you think it might advance the discussion. I assume that you look at the 9th Amendment as guaranteeing rights that are not specifically enumerated in the Constitution (your unenumerated rights). Perhaps you think that identifiable rights exist that fall under the protection of the 9th Amendment. I assume you conclude that, if the Fed (or State?) steps on those rights, the 9th Amendment should be invoked to protect the people from the govt. interference.
My guess is that you may see this as consistent with what I say above. But here is the rub, as I see it. History suggests that the 9th does not create or protect any rights at all (enumerated or unenumerated.) It just textualizes the notion that the Bill of Rts should not be construed to alter the structure of the Fed as a govt limited to only those powers granted by the Constitution. (Under this reading, the 9th and 10th have a lot of overlap, which makes some sense, structurally.)
In fact, the judicial creation and/or identification of particular rights (such as association) under the 9th Amendment could be viewed as entirely antithetical to the actual purpose the 9th. The fed. government (judges) are governing in a manner that is not specifically granted in the Constitution! Or, at the very least, the judiciary is usurping the will of the people (through the States) by amending the Constitution (adding rights) without following Constitutional amendment procedures.
Even if you look closely at some of the opinions in Griswold (which creates a new substantive right), they stop short of finding the right of reproductive privacy in the 9th Amendment. Instead, they use the 9th Amendment to justify the theory that the Constitution itself recognizes the potential for rights and protections beyond what is specifically listed. (Shivas and Bork will tell you that this use is also antithetical to the 9th.) The Justices turn to other portions of the Constitution to (try to) find the actual rights extending from enumerated rights.
So, as I understand most of the evidence, the 9th Amendment is not a place to turn to when one is looking to find specific substantive rights that one wishes to protect Constitutionally. In other words, freedom of association cant be protected by the 9th amendment because it is not an amendment that protects any specific rights.
Now after having said all this, there are scholars who believe that the 9th Amendment is a legitimate place to look for rights that seem to go beyond the text of the constitution. But, to be honest, I can't really remember what they said. If I recall correctly, one such scholar is John Ely who wrote Democracy and Distrust. You may want to check it out if you are interested in going deeper into the issue.