Compare and contrast the 9th and 10th Amendments

[SingingAnalyst]

As far back as the 1980s, I began hearing there was tension between these two amendments.

Take same-sex encounters: In 1986, the Supreme Court held in Bowers v. Hardwick that a state could ban such encounters; by 2003 (in the face of growing public support for such encounters) it decided otherwise. I can see from the 9th Amendment how one can have the right to such an encounter (among consenting adults, of course) and from the 10th Amendment how a state could (at least until 2003) prohibit such encounters, as they are not specifically named in the Constitution as a "right".

A similar point could be made about abortion, smoking marijuana, etc.  I recall during the 1987 Bork hearings that certain unnamed rights, such as the right to travel, were discussed.

It seems the 10th Amendment is cited mostly by self-described conservatives, while the only person I've ever heard cite the 9th Amendment is Geoff Fieger's most famous client, Jack Kevorkian (1928-2011), who was associated (however loosely) with the Left, rather than the Right.

Is there tension between these two Amendments and if so, can it be resolved and if so, how?

[MarkD]

There is tension between the two if you make the mistake of believing that the 9th is relevant when challenging a state or local law. The way to resolve that tension is to adhere to what was the originally intended purpose of the 9th and avoid invoking the 9th when challenging a state or local law.

The originally intended purpose of the 9th was parallel to the 10th. Both of those amendments require the federal government to limit its powers to specifically-enumerated powers in the Constitution. For example, if one was challenging Obamacare and arguing that the individual mandate component of that federal law is unconstitutional, one would argue that the 9th amendment protects our right to live without health insurance, because there is no enumerated power of Congress to require that people get health insurance. That argument was unsuccessful, because the Supreme Court did find that there is an enumerated power which allows the mandate, but that is the way the attorney arguing against Obamacare should have argued about the 9th.