Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

IJ’s Center for Judicial Engagement exists to educate the public and policymakers about the proper role of courts in enforcing constitutional limits on the size and scope of government. That is why IJ is excited to announce the release of a new book that explores how Americans protect rights beyond those enumerated in our constitutions. Published by the University of Michigan Press, it’s called Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.  

Many Liberty & Law readers have heard of the Ninth Amendment, which protects rights “retained by the people.” What you likely haven’t heard, though, is that two-thirds of all states have language like the Ninth’s in their own constitutions. This book tells the story of how these provisions came to be, what they’re designed to do, and what they mean for unenumerated rights more broadly, including for the U.S. Constitution itself—and ties them into IJ’s own litigation. 

The first of these provisions was enacted in 1819, 30 years after the Ninth Amendment was drafted. By the Civil War, a dozen states had them. Then they grew and grew, with Illinois adopting the latest in 1970. 

Why do so many states have them? Because unenumerated rights are popular! Americans like protecting rights, so they use broad language at the end of their bills of rights intended to make clear that our rights are not limited to those written down.  

Indeed, judicial protection for unenumerated rights is a vital part of the American tradition, a point made clear at our recent conference on the 100th anniversary of Meyer v. Nebraska, in which the U.S. Supreme Court struck down laws forbidding private schools from teaching foreign languages and spelled out many unenumerated liberties that the Constitution protects, including the right to earn a living. IJ was proud to preview this book at the conference among the many scholars who came together to celebrate this landmark decision in the fight for liberty and discuss how it continues to be relevant to IJ’s work today.  

The best news? Although the paperback and hardback versions are available from booksellers for a decent price, the electronic copy is available for an even better one—free! There’s also an audio version. Go to ij.org/b9 to find out more.

Anthony Sanders is director of IJ’s Center for Judicial Engagement.