Baby Ninth Amendments
How Americans Embraced Unenumerated Rights and Why It Matters
Director for the Center for Judicial Engagement, Institute for Justice
[email protected]
Published by the University of Michigan Press
Listing every right that a constitution should protect is hard. American constitution drafters often list a few famous rights such as freedom of speech, protection against unreasonable searches and seizures, and free exercise of religion, plus a handful of others. But there are an infinite number of rights a constitution could protect. However many rights are put in a constitution, others are going to be left out. So what is a constitution drafter to do? Luckily, early in American history a few drafters found an easier way: an “etcetera clause.” It states that there are other rights beyond those specifically listed. The most famous etcetera clause is the Ninth Amendment to the U.S. Constitution, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Yet scholars are divided on whether the Ninth Amendment itself actually does protect unenumerated rights, and the Supreme Court has almost entirely ignored it. Regardless of what the Ninth Amendment means, however, things are much clearer when it comes to state constitutions. Two-thirds of state constitutions have equivalent provisions, or “Baby Ninth Amendments,” worded similarly to the Ninth Amendment.
This book is the story of how the “Baby Ninths” came to be, what they mean, and what they tell us about unenumerated rights more generally. Unlike the controversy surrounding the Ninth Amendment, the meaning of the Baby Ninths is straightforward: they protect individual rights that are not otherwise enumerated. They are an “etcetera, etcetera” at the end of a bill of rights. This book argues that state judges should do their duty and live up to their own constitutions to protect the rights “retained by the people” that these “etcetera clauses” are designed to guarantee. The fact that Americans have adopted these provisions so many times in so many states demonstrates that unenumerated rights are not only protected by state constitutions, but that they are popular. Unenumerated rights are not a weird exception to American constitutional law. They are at the center of it. We should start treating constitutions accordingly.
In this provocative work, Sanders carefully traces the adoption and interpretation of the Baby Ninths across time and space—masterfully illustrating how studying the history and development of state constitutional provisions can enhance our understanding of both the federal Constitution and the rights that it and the state constitutions protect.”
Why do the Baby 9ths matter? Why should you care?
In his book, Anthony Sanders lays out a straight-forward, engaging and easy-to-understand story of how the everyday rights of Americans—those rights that make up the everyday person’s life, which are not specifically assigned for protection by either the federal or state constitutions—are supposed to be respected and protected.
What are these rights? And why should you care?
They are as numerous as the stars. As one of the Founders said, put together any list of rights and “I will immediately mention twenty or thirty more.” They could be everything from your right to earn a living to your right to garden to your right to cook your family a meal. The government at any level has no place unreasonably limiting or regulating such matters. When Americans write constitutions they understand that they cannot predict all the mischief government might get up to, so they broadly protect rights beyond just those enumerated. In his book, Sanders outlines how states adapted and used “Baby Ninth” Amendments to protect individual liberties, and why it matters today to protect individual rights not explicitly written into the federal or state constitutions.
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Quotes
Selected Quotes from Baby 9th Amendments
sample chapter
Read the book’s Introduction chapter here.
book reviews
Roger Pilon is a senior fellow in constitutional studies at the Cato Institute and the founding director emeritus of Cato’s Robert A. Levy Center for Constitutional Studies.
State-level “Baby” Ninth Amendments can help us understand the full spectrum of our individual rights.”
On March 24 a year ago, Professor Josh Blackman delivered the Heritage Foundation’s inaugural Edwin Meese III Originalism Lecture. During the Q&A I asked Josh how originalist judges, who purport to be nothing if not textualists, could call themselves originalists if they ignore certain constitutional texts in plain view. He understood, of course, that I was alluding to the Ninth Amendment, plus the Privileges or Immunities Clause of the Fourteenth Amendment. With Dobbs v. Jackson soon to be decided, and Justice Samuel Alito’s draft opinion not yet leaked, Josh answered, in part, that if the Court were to overrule Roe v. Wade, as many expected, that might open up space for revisiting substantive due process and, more precisely, the judicial protection of unenumerated rights, which a natural reading of the Ninth Amendment would seem to require: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Three months later the Court did overrule Roe, and the regulation of abortion has been returned to the states where it had long been when the Court weighed in in 1973. Perhaps we can now have a more sober discussion about the meaning and force of the Ninth Amendment. To aid us, Anthony Sanders has written an important and timely guide to the amendment and, more fully, to similar amendments in state constitutions: Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters, a rich account of these “etcetera clauses,” long included in many state constitutions and found today in the constitutions of two-thirds of the states.
[An] unreservedly recommended addition to personal, professional, community, college, and university library.”
Skillfully addressing an otherwise obscure or neglected part of the American Constitution, “Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters” is also features a twelve page Appendix (Baby Ninth Amendments in State Constitutions), thirty pages of Notes, and an eight page Index. Exceptionally well organized and presented, “Baby Ninth Amendments” is an invaluable, timely, and unreservedly recommended addition to personal, professional, community, college, and university library Political Science collections and supplemental Constitutional Law curriculum studies lists. It should be noted for law students, academia, members of the Judiciary, political activists, and non-specialist general readers with an interest in the subject that “Baby Ninth Amendments” is also available in a paperback edition
podcast
Listen to the CATO Daily Podcast Interview with Anthony Sanders, hosted by Caleb O. Brown.
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