“If Senator Santorum is a ‘strong supporter of the 10th amendment’…”

Unfortunately, Constitutional interpretation was screwed up by the “penumbras and emanations clause” tucked in there somewhere but eclipsed by the Constitution’s actual words. [I still can't find it, but see Griswold v. Connecticut, 381 U.S. 479 (1965) where Justice Douglas claimed it is in there]. Of course, Griswold paved the way to Roe v. Wade and other such cases where the Court found constitutional rights not explicitly stated. We now have a system where the Tenth Amendment does not mean what it says and the SCOTUS is unconstrained from “interpreting” what the law law should be.

So, if such Alice in Wonderland logic of constitutional construction and interpretation is indeed valid, then Santorum may have a point that there is a constitutional prohibition on gay marriage tucked somewhere in the penumbras and emanations of the Constitution. That’s not what the Constitution says, but that’s what it could mean. So why should Santorum bother reading the 10th Amendment? It is presently meaningless.

Ed is correct: it is the Ninth Amendment that backstops libertarian “rights.” The Tenth promotes collective “powers,” even potentially to be abused by the likes of Santorum.