Nine Stories of Baby Ninths: A Preview

Anthony Sanders · March 2, 2023

When Americans write constitutions they like enumerating rights. That’s what the U.S. Constitution’s Bill of Rights does, and the same is true for every state constitution. Each lists rights that individuals enjoy and that the government is prohibited from violating.

But when Americans do this they also realize that they can’t enumerated every right. If they did a bill of rights would be as long as that thing we used to call a phone book. As James Iredell said at the Founding “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.” Or longer. Any bill of rights is therefore going to be incomplete, with the constitution’s drafters wanting to protect rights beyond just those that they list. What Americans have done to get around this quandary isn’t to throw up their hands and just allow the government to violate rights beyond the few that are enumerated. Instead they’ve drawn upon something Anna once taught the King of Siam: Say “etcetera, etcetera.” Instead of putting it that way, though, they say some version of the following (this version from Ohio): “This enumeration of rights shall not be construed to impair or deny others retained by the people.”

At least, that’s what I argue in my forthcoming book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters, published by University of Michigan Press. The origin of that quoted language is the Ninth Amendment to the U.S. Constitution. While the Ninth itself was adopted in 1791, the first state constitutional provision that was inspired by the Ninth Amendment—called a “Baby Ninth”—was adopted in 1819. And over the next 150 years versions of it came to find a home in thirty-three states. These provisions, I argue, protect individual rights beyond just those enumerated in state constitutions and judges in those states must interpreted them with real scrutiny to prevent state and local governments from violating those rights, just as they are also supposed to do for enumerated rights.

If you’d like to read the book it will be out on May 9, 2023. You’ll be able to buy it for a reasonable price in paperback and hardcover, or even get the electronic version for free. And if you just can’t wait, the introduction is available now at IJ’s page for the book, as is a video of former New York Times reporter Stuart Taylor interviewing me about it.

Plus, here on the blog I’m going to try and have a bit of fun by telling some stories about how these Baby Ninths have protected real people in their travails with the government. Publication of the book is about ten weeks from when I’m posting this. Thus, starting next week, once a week, I’ll be writing about nine different court decisions where judges used a Baby Ninth to protect someone’s rights, and how that decision made a difference for that person or those people.

As you’ll learn in my book, Baby Ninths have been woefully ignored throughout their history. But on occasion they’ve broken through and done what they were designed to do. My hope is that by sharing nine stories where this actually happened I can demonstrate why judges should engage with Baby Ninths and protect the rights of everyone else.

I’m listing the cases below if you’d like to get a head start! Otherwise, I’ll see you next week with the first story (and in ten weeks with the release of the book). They’re listed here chronologically, not necessarily in the order I’ll be writing about them.

I will say though, that next week I’ll be writing about In re Dorsey, a wild 1838 Alabama case about a requirement that lawyers swear an oath to never having been in a duel. I hope you enjoy it and all I can say is I’m not throwin’ away my shot.

In re Dorsey (Alabama 1838)

State v. Williams (North Carolina 1908)

Roman Catholic Archbishop of Diocese of Oregon v. Baker (Oregon 1932)

City of Mobile v. Rouse (Alabama 1937)

Thiede v. Town of Scandia Valley (Minnesota 1944)

Murphy v. Pocatello School District (Idaho 1971)

Nickola v. Township of Grand Blanc (Michigan 1975)

In re Brown (Mississippi 1985)

In re Adoption of BGS (Louisiana 1990)

UPDATE: You can find links to the nine stories as they’re posted here: One, Two, Three, Four, Five, Six, Seven, Eight, and Nine.