Anthony Sanders is director of the Institute for Justice’s Center for Judicial Engagement.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
—Amendment IX, U.S. Constitution
Worries about the U.S. Supreme Court’s failure to protect certain federal rights have focused new attention on state constitutions. Meanwhile, originalists remain interested in how to apply their ideas to different texts.
Both topics relate to a book I have coming out next year. It’s about a common state constitutional provision called a “Baby Ninth Amendment” and how state constitutions can help us think about American constitutionalism more generally. It turns out the people who actually wrote our constitutions have far more appreciation for our constitutional liberties than the judges who interpret them. That’s a problem I hope to change.
Let me start by politely asking, what did you do yesterday? Perhaps you worked from home. Maybe you tended your garden or shared its proceeds with the homeless in your neighborhood. You might have had friends or family over to play poker. And you may have told your daughter, no, she may not have a cookie for dinner.
You have your own examples. Whatever they are, they’re important to your life, from the obvious (earning a living, charity) to the not-so (imagine life without games or tough love). They’re also all not explicitly protected in the U.S. Constitution, nor most likely in your own state constitution.
Yet dozens of states do protect all of these as rights. How? Through a phrase we’re all familiar with: “Etcetera, etcetera.”
But instead of using that exact language, they use something like this, from Ohio’s constitution: “This enumeration of rights shall not be construed to impair or deny others retained by the people.” Many readers will notice that looks a lot like the Ninth Amendment to the U.S. Constitution. The Ninth has long stirred scholarly debate, but the Supreme Court has almost entirely ignored it. Does it actually protect “other” rights? Or is it about federalism? Or just hortatory advice?
In the book, I take a neutral view on the Ninth Amendment itself. Whatever it means, though, I argue that its children in the states can only mean one thing: They protect other rights beyond those enumerated. Drafters of state constitutions learned that if you listed every conceivable right that might need protection, you’d write a bill of rights longer than the phone book. So they found a solution: Put in broad language that refers to “other” rights; i.e., “etc.”
The history of Baby Ninths is illuminating and runs counter to many current assumptions. The first time a state included language like the Ninth Amendment’s wasn’t until 1819 in Alabama. Maine followed a few months later. In the decades that followed, states here and there also chose to include it. A dozen had them on the eve of the Civil War. Into the 20th century, more states — new and old — adopted them, Illinois being the most recent in 1970. Today, 33 have the equivalent of “etcetera, etcetera” in their bills of rights. Unenumerated rights aren’t a weird exception to American constitutionalism — they are popular.
That is, unless you’re a judge. Despite the nationwide prevalence of these provisions, judges who interpret them have been mostly mum. As noted above, a few courts have occasionally interpreted Baby Ninths to protect unenumerated rights. For example, the Michigan Supreme Court once struck down an exclusionary zoning rule under its Baby Ninth as violating the provision’s protection of providing low-cost housing. And, before the U.S. Supreme Court ruling in Lawrence v. Texas, the Arkansas Supreme Court found its Baby Ninth protected intimacy between same-sex couples.
But for the most part, judges have ignored Baby Ninths or allowed states to act in ways that courts generally wouldn’t allow when enumerated rights are involved. This despite the enumerated command to not “impair or deny” rights just because they’re not enumerated. Further, even when state judges have protected unenumerated rights, they’ve generally followed the federal courts and relied on state due process clauses as their basis, even though Baby Ninths are available.
You wouldn’t be crazy to conclude that judges simply think Baby Ninths are a bad idea and so they don’t enforce them. But that’s not their choice. Just as federal judges have a duty to enforce the First Amendment, state judges must enforce Baby Ninths. This doesn’t mean judges should strike down any law restricting liberty. It just means they need to assess a law with genuine scrutiny — just as they already do with restrictions on speech, religion, and other enumerated rights.
With this understanding, your unenumerated rights to earn a living, give to the homeless, raise a family, grow your own food — and exercise the infinite other liberties necessary to flourish in a liberal society — are constitutionally protected. Without a constitutional phone book.
Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice and the author of the forthcoming book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.
The views expressed are the author’s own and not necessarily those of the Brennan Center.