Interestingly, the first real controversy regarding Judge Clarence Thomas' nomination to the Supreme Court is not about his opposition to affirmative action or even to his presumed extreme conservatism in general, but to his apparent belief in "natural rights." He has referred approvingly to this concept in speeches and articles.
Advocates generally argue that such rights are superior to man-made rights -- and are the endowment of God or a "creator," as the Declaration of Independence put it. Such rights are therefore both extra-constitutional and religious or theological. Many liberals and conservatives are nervous about this sort of legal thought. Robert Bork, whose conservatism was so extreme in the view of a majority of senators that they voted down his nomination to the Supreme Court, has scoffed at the notion that judges may follow natural law. He believes individual rights not specified in the Bill of Rights are not rights at all.
There is a way for judges to recognize unspecified individual rights without resorting to religion or any other source outside the Constitution. The Bill of Rights is specific only through the first eight amendments. The Ninth Amendment says, "The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Judge Thomas and Mr. Bork both reject this as grounds for rights not specified. So far as we know, no decision by the Supreme Court has ever relied on the Ninth Amendment. But a growing number of lawyers, elected officials and judges have cited it in recent years.