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Unenumerated Rights and Baby Ninth Amendments
State constitutions confirm the American founders’ intent to protect a broad swath of individual liberties, not just those specifically listed in the U.S. or state constitutions
By Anthony Sanders
Most Americans are familiar with at least some of the individual rights that the Constitution explicitly protects: freedom of speech and the press, religious liberty, due process of law, trial by jury, and bans on cruel and unusual punishments, to name just a few. Many state constitutions also contain these (or similar) provisions. But what about rights that aren’t explicitly protected, such as the right to eat what you want, travel where you want, contract with whom you want, build yourself a home, build yourself a family, own a dog, own a stamp collection, play basketball or play poker?
Whether and to what extent the Constitution protects these “unenumerated rights” is a vexed question that has received different answers in different eras from different courts. Some parts of the U.S. Constitution indicate that at least some unenumerated rights are protected. For example, the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But judges and legal scholars disagree on both the Ninth Amendment’s meaning and what specific unenumerated rights it might protect.
In my forthcoming book, “Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters,” I argue that whatever you think the Ninth Amendment itself means, state constitutions that use the same language as the Ninth Amendment do protect unenumerated rights. This tells us that far from being constitutional outliers, unenumerated rights are a normal thing for constitutions to protect, and this should make us more open to the possibility that the U.S. Constitution protects them as well.
Unenumerated Rights Are Everywhere
Unenumerated rights are discussed a lot, but almost always in the context of the U.S. Constitution. That famous document enumerates a number of rights, but it is a relatively short list. Specific rights are enumerated in just eight amendments in the Bill of Rights, and a handful of others appear in the original Constitution and in later amendments.
A perennial question of constitutional law is whether the Constitution protects rights beyond those specifically enumerated and, if so, how. In other words, how does the Constitution say, “The above rights are protected, et cetera, et cetera”? To figure this out, judges, lawyers and scholars have fought endless battles over whether certain provisions in the Constitution are some kind of “et cetera clause.”
As I recently detailed in Discourse, at times the Supreme Court has said this is partially true of the Constitution’s two “due process of law” clauses (one applying to states, one to the federal government). Further, many have long argued—though to no avail in the courts—that the 14th Amendment’s privileges or immunities clause is a better fit for saying “et cetera.” And the one clause that gets even less respect—but seems the most perfectly suited to say “et cetera”—is the Ninth Amendment.
Thus, there are basically only three ways to find a textual basis for unenumerated rights in the U.S. Constitution: the due process clauses, the privileges or immunities clause, or the Ninth Amendment. You can also try and find unenumerated rights nontextually through “penumbras” and “emanations” of enumerated rights, but that process is fraught with peril, as Justice William O. Douglas learned when he used that trick in Griswold v. Connecticut. To quote Georgetown law professor David Luban, “I can attest from personal experience that” Douglas’ famous use of these words “attracts a great deal of ridicule in law school faculty lounges.”
To some extent, the entire history of arguing about unenumerated rights comes down to these three provisions, including where they are in the Constitution and exactly who said what at the time they were adopted. Sometimes you get the sense from critics of unenumerated rights that if they can just come up with three strikes against these three clauses, then unenumerated rights will be out. For example, Justice Antonin Scalia, one of history's greatest opponents of unenumerated rights, not coincidentally opposed using all three provisions. Once in my presence he called the privileges or immunities clause “another ship for the rats to cling to.”
What my book details is that there is a whole different ballgame—with way more than three clauses—in the states. Every state has a constitution. Although they do not bind the federal government, those constitutions are just as constraining on state and local authorities as the U.S. version. Further, they represent numerous times when Americans have expressed themselves in constitutional language other than in the U.S. Constitution.
And two-thirds of these state constitutions contain language almost identical to the Ninth Amendment. These “Baby Ninth Amendments” only make sense as clauses that protect unenumerated rights. Further, when considered with other language broadly protecting rights in state constitutions, they demonstrate that, far from being an alien intrusion into our constitutional order, unenumerated rights are at the center of it.
State Constitutional Laboratories
The story of state constitution building is itself a kind of history of America. Every state adopted a constitution at least once, and many have done so several times. States learn from each other as they go. When it comes to a bill of rights, delegates to state constitutional conventions emulate the U.S. Constitution but also keep a close eye on what other states have been up to. Plus, convention delegates and drafters of constitutional amendments come up with their own innovations along the way.
Written constitutions—as a “higher law” superior to anything that a legislature might adopt—were an innovation themselves at the time of America’s founding. The first, New Hampshire’s of January 1776, was simply a brief sketch for how to hold the newly independent government together. Over time, though, individual states added a bill of rights (sometimes called a “declaration of rights”) and put it, along with the rest of the constitution, above the reach of normal legislative power.
The concept of a bill of rights was already familiar from English history, but making such rights “higher law” was new. As the idea spread and evolved, states quickly began adopting rights provisions with broad language that covered not just specific rights, such as freedom of the press, but whole areas of human activity, such as “the enjoyment of life and liberty” and “obtaining happiness and safety.”
Then, in 1819, within just a few months of each other, the delegates to two conventions for their states’ first constitutions adopted for their states the language of the Ninth Amendment, itself drafted 30 years earlier. These states—Alabama and Maine—could not have been more different at the time. But their conventions wanted their constitutions to say that just because “certain rights” were enumerated did not mean “others retained by the people” were denied or disparaged. These Baby Ninth Amendments were then slowly emulated elsewhere, so that by the time of the Civil War a dozen states had included them in their constitutions. That number grew during Reconstruction, grew again as more states were added to close out the 19th century, and even kept growing throughout the 20th century. After Illinois added a Baby Ninth to its new constitution in 1970, a full 33 states had nestled them at the end of their bill of rights.
What do these et cetera provisions mean? There are rights beyond just those enumerated in the state constitution, and those rights are protected by that constitution at the same level as the enumerated rights. In other words, they say “et cetera, et cetera.” The debates from constitutional conventions when Baby Ninths were discussed support this interpretation, as does each Baby Ninth’s exact language.
What rights, exactly, do they protect? Rights that are “retained.” That is the key word in the Ninth Amendment and in every Baby Ninth as well. What does “retained” mean in this context?
It may sound trite in American political theory to say it all goes back to John Locke, but in this case it’s really true. Although today many legal and political theorists do not think much of social contract theory and the supposed “state of nature” that the 17th-century English philosopher discussed in his Second Treatise of Government, those who wrote American constitutions thought otherwise. Our state constitutions are infused with Lockean terminology, where the people are understood to come together to found a government, but not to give themselves entirely up to it.
For example, Ohio’s constitution states: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary.” It also states that “All men are, by nature, free and independent, and have certain inalienable rights.” Similar language appears in the constitutions of, for instance, Alaska, Colorado, North Carolina and Vermont. These constitutions can only be understood with Locke’s social contract in mind. It may be a legal fiction, but it’s a legal fiction we need in order to make sense of American constitutional law.
These constitutions also assume that people come together for mutual protection to form a government, and in so doing they have to relinquish some of their rights—but, unlike what Thomas Hobbes described in his “Leviathan,” not all of their rights. Some rights are “inalienable” and stay with individuals even after they form a social contract. That is, these rights are “retained by the people.”
The rights that Baby Ninths protect are not just anything labeled a “right.” They are not positive rights, meaning rights for the government to provide something, such as a right to housing or healthcare. They are Lockean negative liberties, such as your right to do what you want with your own body, your right to voluntarily exchange with others, and your right to do what you wish with your own property as long as it does not violate another’s rights. These rights align with those we might perceive as even more obvious: eating what you want, contracting with whom you want, building yourself a home, even playing basketball or collecting stamps!
Rights That Mean Something
That being said, these are not absolute rights that the government can never regulate. Baby Ninth Amendments say that enumerated rights cannot “deny or disparage” (or “impair,” in many versions) these unenumerated rights. In other words, both kinds of rights—enumerated and unenumerated—have to be treated with the same level of respect. The government may regulate freedom of speech or freedom of religion if the facts are right and the state’s interests weighty enough, but the courts will examine those restrictions closely, given the importance of the right at issue.
The same level of judicial scrutiny needs to be given to “retained rights” as well—not the extreme judicial restraint that is generally given to most unenumerated rights. This heightened scrutiny would provide real protection for real rights while still allowing government to do what we want it to do: protect the public from violence and provide true public goods.
I believe this is what the Ninth Amendment itself does. I grant, however, that a lot of erudite scholars disagree—some in their quest to pitch their “three strikes” against unenumerated rights. But one message of my book is to meet these scholars halfway: Even if you believe that the federal Ninth Amendment is not an et cetera clause, the same cannot be said about the Baby Ninths and state constitutions generally. For example, the primary argument that the Ninth Amendment does not protect unenumerated rights is that it actually protects federalism, in tandem with the 10th Amendment.
But at the state level, federalism is a misnomer. We often say states are sovereign, but we don’t say that about counties, cities and water control districts. Whatever reason the United States had for adopting the Ninth Amendment during its founding, the reason states have the same language is to protect unenumerated Lockean rights.
Unfortunately, state courts also have not taken Baby Ninths seriously. On occasion, some state judges have enforced Baby Ninths to protect unenumerated liberties of various kinds. (I recently detailed nine examples on the Center for Judicial Engagement’s blog.) And when the question comes up, most state judges have recognized that Baby Ninths protect rights not otherwise enumerated. But, in blatant contravention of what the Baby Ninths actually say, judges have essentially concluded they protect unenumerated rights, but not very much, giving enumerated rights greater protection and letting the government do pretty much what it wants in terms of restricting unenumerated rights.
I’ve focused on interpreting state constitutions and having state judges take them seriously to better protect the people from state and local government overreach. But there’s a lesson to take away for the U.S. Constitution as well. The fact that so many state constitutions protect rights beyond just those enumerated—the fact that they protect the infinite number of different liberties we could enumerate in a bill of rights by essentially saying “et cetera, et cetera”—means that unenumerated rights are something that Americans are comfortable with. They’re popular. They’re widely accepted.
Thus, when we turn our attention to the U.S. Constitution, we should be open to the possibility that it also protects unenumerated rights of all different kinds. Maybe the textual basis for that is the Ninth Amendment itself, maybe the privileges or immunities clause, maybe the due process clauses. But it would be a little exceptional if none of them protected unenumerated rights since the states provide strong evidence to the contrary.