Interesting New Book on Unenumerated Rights in State Constitutions

Baby Ninth Amendments, by Anthony Sanders

I thought readers might be interested in a new book published by Anthony Sanders of the Institute for Justice: Baby Ninth Amendments. Here is the description:

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.

There's much more, and a free copy of the first chapter, at this website. [UPDATE: In fact, you can download the entire book for free, as an e-book, here.]

My own tentative view of the Ninth Amendment to the federal Constitution is that it both serves as a rule of construction for the enumerated powers—reminding us not to use the enumeration of rights to infer that the government would otherwise have had the power to abridge them—and also serves to preserve the general law rights of citizens, a body of general law rights that turn out to be central to understanding the Fourteenth Amendment (as a new co-authored draft will argue).

Sanders argues that both of those views of the Ninth Amendment (which are not really original to me) are an awkward fit with the history and structure of "Baby Ninth Amendments." Maybe that awkwardness can ultimately be squared—though Sanders doesn't think so—but regardless that makes this an interesting and useful contribution in thinking about unenumerated rights more generally.

 

Comments

[jdgalt1]

As I see it, the Ninth and Tenth were intended to be read together, as more or less an explicit rule of strict constructionism. That is, if any topic or asserted right is not expressly discussed in the Constitution, the 9th says it may be an individual right; otherwise it has to be a state power, since the 10th says it CANNOT possibly be a federal power.

[nicmart]

As I understand it, the originally adopted amendments were not as first proposed. For instance, the first amendment was not originally submitted as the first. So, were the 9th and 10th even proposed in that order, next to each other? Someone knows.

[SMP0328]

The First Congress proposed twelve amendments, but only ten were adopted at the time. The 9th and 10th Amendments were proposed as “Article the Eleventh” and “Article the Twelfth.” They were proposed next to each other, just their numbering was changed following ratification.

[MatthewSlyfield]

I will add that the two that weren’t ratified at the time were articles 1 and 2 from the original bill of rights.

Article 1 had to do with members of congress having to face re-election before a pay raise could go into effect and was eventually ratified as the 27th amendment in the 1990s.

Article 2 was a fairly detailed plan for sizing HoR districts as the US population increased. Had it been ratified the House would today be significantly larger than it is.

[SMP0328]

Other way around. Article the First was regarding the size of the House of Representative; it has not been adopted. Article the Second was regarding the Congressional pay; it became the 27th Amendment in 1992.

[The Turtle Dove]

There are not an infinite number of rights, or at least non-frivolous ones, not like the right to move in a specific tangent from a circle. Rights are privileged actions, and by necessary implication, there are non-privileged actions bounding the class. The same principle that creates the right cabins the right and makes it finite. A right distinguishes a certain pre-existing circumstance, excluding others by the distinguishing.

Tl;dr: there’s a finite number of trumps in any deck, if trumps are to be trumps.

Mr. D.

[Stephen Lathrop]

Provocatively well put.

[apedad]

“Rights are privileged actions. . . . ”

WHOA!

I would say the exact opposite and Rights are basic, fundamental, elements which all persons inherently possess.

[Stephen Lathrop]

apedad, it depends. Are you interested in rhetoric, or in what actually happens? The notion that you possess some right without power to vindicate it is silly. Where do you propose to find that power, if not from some entity with more power than government?

[apedad]

“. . . Governments are instituted among Men, deriving their just powers from the consent of the governed. . . . “

That’s not a rhetorical statement.

[Stephen Lathrop]

apedad, no, it is a rhetorical statement. It also does not mention rights. Once again, the notion that you possess some right without power to vindicate it is silly. Where do you propose to find that power, if not from some entity with more power than government?

[David Nieporent]

Are you interested in rhetoric, or in what actually happens?

Sort of a weird statement from someone who talks about “popular sovereignty,” which is rhetoric rather than “what actually happens,” which is sovereign government.

[Stephen Lathrop]

Nieporent, so much for American constitutionalism. Do you suppose that sovereign power operates today in the U.S. just as it did during the reign of Charles I of England? Oh, wait, I forgot. You are a libertarian crank. You suppose there is no such thing as sovereignty. Never mind.

[Brett Bellmore]

I think he meant “privileged against the government”, not that they ARE privileges.

[Stephen Lathrop]

Bellmore, a right is a power to stay the hand of government. Most of us don’t have that kind of power personally. We are indeed privileged to be members of a joint popular sovereignty which does have that power, and which has decreed its commitment to use it on our behalf.

[Doug Huffman]

Well said.

[Artifex]

The same principle that creates the right cabins the right and makes it finite

Nope. That’s not the way infinite sets and partition into subsets works. That may be the rhetorical lawyerly take on set theory, but it is not accurate.

If I have an infinite deck of cards with the suits distributed as with a single deck and spades are trumps, I do in fact have an infinite number of trumps 🙂

[Brett Bellmore]

It’s a product of dismissing the legitimacy of subdividing rights into infinitesimal fractions. The right to publish “A”, and the right to publish “B”, and the right to publish “AA”; Instead, it’s the right to publish, period.

So you end up with a countable number of rights of substantial dimension, rather than an infinite number of infinitesimal rights.

[Artifex]

Only if you start with a finite number of items which was not the argument made. If you define the set of rights as finite by definition, sure it is finite.

If you let the set of actions be infinite and then select “rights” by some criteria, that simply does not make the set of rights finite by rule. This applies even if you have some clever metric for “size” of a right.

[Brett Bellmore]

I don’t think it’s so much a finite number of items in the first place, as it is a continuum which we’re for convenience’ sake breaking up into items. But a continuum of finite extent.

[Sarcastr0]

Your complaint is a necessary outcome of a good process – rights are elucidated by means of implementation in a case or controversy.

It may not make our rights nice and simple and logically consistent. It foregrounds utility of application, and I think that’s the right decision.

You want physics; this is engineering.

[Brett Bellmore]

“You want physics; this is engineering.”

As if. It’s sausage making, no, not even that.

Ayn Rand’s big insight was that the rules of logic, such as non-contradiction, actually DO apply to ethics, because they apply to EVERYTHING. It’s just that in domains like ethics people have a bad habit of not caring if they’re being illogical.

In engineering, when you don’t care about the rules of logic, planes fall out of the sky and bridges collapse, and you’re forced to care. In ethics and law, if you don’t care about the rules of logic, you still get disaster, people are just worse about failing to make the connection between the disaster and the illogic.

[SRG]

What do you – and Rand – imagine logical and illogical ethics to be?

[Brett Bellmore]

Illogical ethics would be ethics which incorporates a contradiction, that demands both A and not A.

That was expressly why some early libertarian theorists categorically rejected positive ‘rights’, for instance: By introducing positive ‘rights’ into a system of ethics, you could generate contradictions, similar to the way division by zero works in math.

Of course, the fact that a system of ethics doesn’t incorporate any contradictions doesn’t prove it true. It just makes it being true possible.

[The Turtle Dove]

Yes, but the analogy specified one deck of cards (a rather large one), the list of all possible claims of privileged action. If you allow multiple worlds, you could equally say that there are an infinite number of Joe Bidens in the world, and that’s arguably both untrue and not the claim in the article above.

Caveats: IANAP (Philosopher), and I’ve read next to nothing in infinity theory. This is back-of-the-envelope.

Let P=the principle of the right, and (r1, r2, r3, etc.) be the set of privileged actions that can be encompassed by the claim. Let (n1,n2, n3, etc.) be the list of non-privileged actions that are outside the principle.

In Fredonia, the President proclaims P, which encompasses a certain number of privileged actions. The only way now for there to be an infinite set of rights within the existing universe of actions would be for either a single proclamation or a series of proclamations to encompass the entirety of P(n1, n2, n3, etc.).

So let’s posit Fredonia Prime (two day delivery is the social contract). Fredonia Prime enacts the precise opposite of Fredonia’s laws. Where Fredonia prohibited the quartering of soldiers, Fredonia Prime mandates it. Intuitively, we seem to have solved the problem and made the entirety of possible actions subject to a rights claim. Except that’s not how rights work.

Rights are like dim flashlights–they reveal enough of the world for you to make your way, but they don’t go nearly as far as one might think. They illuminate, in their totality, only as far as the reason of the right has an objective correlative in things that exist in the world.

So P is the ban on quartering soldiers. R1 protects against a platoon barging in to a McMansion in Nebraska. R2, say, prohibits a partial taking in using Mr. Smith’s lawn for RPG testing. And so on. P’ (P Prime) is the mandate to quarter soldiers. R1 is the fact that the platoon must do so, the RPG testing is required, etc.

The key is that P’ (r1, r2, r3., etc.) is not equal to P(n1, n2, n3, etc.). P(n1) might equally be (1) a platoon requiring housing, fresh sheets, and a continental breakfast, and (2) shouting “fire” in a crowded theatre. The second action, which is irrelevant to both P and P’, is part of the N set, and not the P'(r) set. Along with it is the infinite set of actions in the world. In short: Whenever a rights claim privileges a certain set of actions, the infinite number of actions in the world is on the other side of the equation.

Remember the test: After P is proclaimed, the only way for there to be an infinite set of rights within the existing universe of actions would be for either a single proclamation or a series of proclamations to encompass the entirety of P(n1, n2, n3, etc.).

You simply can’t get there. Language, limits on physical expression, and limits on conceptualization mean that you won’t get an infinite number of tries at encompassing the null set of the rights claim, and even if you could, it would trigger the scenario of an infinite number of Bidens–which simply doesn’t match the universe that the original claim of an infinite number of rights operated within.

Ergo, there are a finite number of privileged actions that can be described as a right. There are not an infinite number of rights that can be listed in a state constitution.

(And to the commenter above who queried “privilege”: it’s a privileging of the action by the government against itself, whether or not the political subject believes the right to be prevenient/inalienable, rather than a privilege of the subject of the right.)

Now. Why does this amusing bit of angels-on-the-head-of-a-pin matter? Because the “bad infinity” of rights is constant, minatory presence in US jurisprudence. I don’t think Scotus would create a novel Bivvens claim even if two tablets came down off the mountain. Rights are aggressively cabined as opposed to (as in German jurisprudence) expounded. In the former, we ration flashlights based on how strong we think they might become, in the latter, we let the light go as far as it can. Rights are reasons, and reasons are more rational than one might think, for the simple reason that they refer to actual things in the world.

Mr. D.

(Incidentally, the bit on Anglo/American v. German rights analysis comes from a named lecture I heard last night on the Cambridge Law Faculty YouTube feed. Oxbridge and the Inns of Court have a lot of great stuff on YT, and the view-count is astonishingly low, sometimes under a dozen views for major dinners and talks. Highly recommended.)

[Stephen Lathrop]

I suggest considering whether or not the wording of the Ninth Amendment was intended to make it a tool to vindicate any and all claims to individual rights which might arise. Note how often commenters use the term, “individual rights.” Note the contrasting wording of the amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That in a document which in its famous first three words delivers context to read, “the people,” as a collective term, referring to the joint popular sovereignty. In the historical record it is not at all ambiguous that the founders intended a right to self-government on the basis of popular sovereignty—not government action—to be the source of power to vindicate rights both personal and collective. That power has never been more salient than it was at the moment in question, while the founders were jointly constituting a new government, empowering it, and limiting it.

We live today in an age of decapitated constitutionalism. Many folks today regard the Constitution as a permanent delegation of all the People’s power to government. That makes it hard for many to understand the admittedly difficult constitutional notion of a continuously active sovereign, with power greater than government’s, to intervene actively in national affairs by extra-governmental means.

I suggest a correct reading of the Ninth Amendment is to understand it as a caution against today’s too-simple reliance on government, to make it an agency with power to abridge the sovereign power, instead of to cherish it, and to activate it.

[Dilan Esper]

There’s no such thing as “the People”, “the People” did not enact the Constitution (mostly slaveholding property owning males did), and the People had no power under the document except to vote for house members and state legislators on periodic schedule.

The guys with the guns are sovereign.

And that turns out to actually matter. Because if the People were really sovereign, there would be no need for rights at all. After all, the People are in charge! Why shouldn’t they have complete sovereignty! Welcome to the Soviet Union! Enjoy your stay.

In the real world, because the guys with the guns are sovereign, rights are really important. And because it is impossible to enumerate all the rights, the Ninth Amendment reminds us that some rights are unenumerated. The whole thing works perfectly well as long as Stephen Lathrop is kept as far away from power as possible.

[Sam Bankman-Fried]

Tucking my pee pee between my thighs and pretending I’m female is my favorite right….take that RepooplicKKKunts!!

[Brett Bellmore]

And you do have that right, just as the rest of us have the right to point at you and laugh at how delusional you are.

[apedad]

1. I don’t think SB-F was being sincere with his ‘my right’ proclamation but regardless;

2. Yes you can point/laugh but your side is doing more and trying to reduce their rights.

[Brett Bellmore]

1. He’s a parody account, so, yeah.

2. No, actually, because so much of what they’re demanding isn’t appropriately rights, on account of actually being constraints on others’ rights.

For instance, the supposed ‘right’ to choose your own pronouns is actually an attempted infringement of others’ freedom of speech, the moment you claim it applies to other people’s use of pronouns.

[Sarcastr0]

the supposed ‘right’ to choose your own pronouns is actually an attempted infringement of others’ freedom of speech

It’s not a free speech issue. You will not be jailed for using the wrong pronouns. You may be treated like an asshole, and have no right for everyone to treat your opinions as legit if they suck.

[Brett Bellmore]

” You will not be jailed for using the wrong pronouns.”

The Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Resident’s Bill of Rights

“(a) Except as provided in subdivision (b), it shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status:

…

Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.”

And I can point to people actually sent to jail recently, in European countries without our robust 1st amendment, for, yes, using the wrong pronouns. The reason it’s not happening here isn’t because transgender advocates aren’t trying to make it happen. It’s because the 1st amendment is still, for the moment, being upheld in the face of those demands.

[Sarcastr0]

First, that’s not some random person, that’s someone’s job responsibilities.

Second, I don’t see jail coming up.

And I can point to people actually sent to jail recently, in European countries Switching subjects so soon, Brett?

The right, including you, has taken to demanding free speech means we have to condone you being a jerk. That’s not how that works at all.

[Brett Bellmore]

What, is this your latest rhetorical twitch, declaring that somebody is changing the subject the moment they say something you don’t like?

The trans movement is demanding control over other people’s speech, and it’s actually happening in countries where freedom of speech doesn’t have the same level of protection.

[Nige]

The trans movement, the actual trans movement itself in person, as it were, is apparently making it a condition of employment at care homes that residents be treated with respect and not verbally bullied by employees and this is an infringement of Brett’s freedom of speech.

[Brett Bellmore]

The government was making it a condition of not being fined or imprisoned, actually.

If the facilities were the government’s own, and the penalty was just being fired, yeah, they’d be regulating government speech, and the 1st amendment wouldn’t be relevant. But they’re actually penalizing private sector speech.

If it passes and doesn’t get struck down in a heartbeat, of course.

[Nige]

There you go, not the trans movement at all.

So it’s the first amendment right of care facility employees to verbally bully and abuse the residents in their charge, and they can’t be fired for it.

[Nelson]

“an attempted infringement of others’ freedom of speech, the moment you claim it applies to other people’s use of pronouns”

Legislatively? Agreed. Legislation requiring the use of preferred pronouns would be an infringement of your freedom of speech.

Culturally? Not at all. You are free to use whatever pronouns or names that you wish for coworkers and neighbors, but you must also accept any consequences, including termination for cause, that result.

Freedom of speech doesn’t protect you from people not wanting to associate with you because you act like a dick and being disruptive to your workplace.

[Brett Bellmore]

I agree that, in the private sector, people are free to impose at least some consequences for a failure to humor somebody’s delusions. So long as they’re not doing so at the direction of government, and thus becoming state agents.

There’s a lot of that going around at the moment, I think.

[Nige]

Brett would rather chew his own fingers off than type ‘treat people with a bare minimum of respect.’

[Rev. Arthur L. Kirkland]

a failure to humor somebody’s delusions

When did this become a discussion of religion?

[Religion and Politics, my life]

Notice, folks, his complete ignorance of Western Philosophy, founded on the LOGOS principle that there is a God , regardless of whehter that sends you to religion or not.

The Rev pretends to have read Locke but get on your marks and start up your search engines : Locke . In A Letter Concerning Toleration (1689), Locke excluded from toleration atheists, whom he considered inherently immoral.

Sorry, Rev, but as John Adams said ‘Facts are stubborn things”

[Nige]

‘For instance, the supposed ‘right’ to choose your own pronouns is actually an attempted infringement of others’ freedom of speech’

This is right up there with ‘that candle is a fire hazard oh ok no it isn’t never mind’ is religous persecution.

[grb]

Brett Bellmore : “…on account of actually being constraints on others’ rights….”

Brett, a quick search shows 540 anti-trans bills have been introduced at all levels of government in this year alone . This didn’t result from the fierce & all-powerful trans lobby stealing your rights. I doubt even your fever-brain can manage believing that.

It’s because the Right finds trans people useful to entertain their political base. I don’t need to violate Godwin’s Law to observe demagogues need an easily despised Other to keep their mobs excited and occupied. That’s a simple historical phenomena. It’s the only reason the tiny number of trans people in this country now have a target pinned to their back.

[Brett Bellmore]

Actually, a lot of them DID result from the trans lobby trying to steal rights; Mostly parental rights concerning their minor children!

And it’s almost trivially easy to show trans advocates wanting to put people in jail for refusing to use their pronouns, so drop that BS.

[Nige]

Brett’s all in favour of opressing a minority engaged in a sinister effort to undermine the nation by corrupting its children.

It’s funny, children can be slaughtered daily by guns, but any effort to regulate is opression. If a child tells something to a teacher they don’t want shared with their family and the teacher complies with the child’s wished, well, an entire group of people must be deprived of health care, demonised and slandered as child abusers, and utlimately criminalised.

[Religion and Politics, my life]

Nige, do you think for a moment that teachers agree with you?

Across the country, roughly 10% of students attend a private school while American public school teachers enroll their children at nearly twice that rate, 21.5%. In some cities, it is nearly four times the average rate.

A teacher is often a parent and so does not cede their parental rights to another teacher. Sorry, can’t enlist them in your fantasy

[Nelson]

“Mostly parental rights concerning their minor children!”

You mean a parent’s right to make medical decisions for their children?

“it’s almost trivially easy to show trans advocates wanting to put people in jail for refusing to use their pronouns”

It is? OK, show me.

[Nelson]

“And it’s almost trivially easy to show trans advocates wanting to put people in jail for refusing to use their pronouns”

Brett? You said it was easy, but then went silent. Can I assume you figured out that it’s really, really, really hard to find the things you said were “almost trivially easy” to find?

[Absaroka]

“It’s the only reason the tiny number of trans people in this country now have a target pinned to their back.”

So, a little while ago a middle aged XY person – an anatomically normal one, FWIW – started using the women’s locker room at the YMCA my wife goes to. When the women complained, they were told he identifies as a woman and gets to use the locker room. The ladies are unhappy.

I don’t think that “It’s because the Right finds trans people useful to entertain their political base. I don’t need to violate Godwin’s Law to observe demagogues need an easily despised Other to keep their mobs excited and occupied.” is an accurate description for a number of reasons, not the least of which is that a number of those ladies are friends and I’d bet good money are Biden voters, not Trump voters. I think it is more that old ladies, across the political spectrum, don’t want to shower with middle aged men.

[Nige]

Wow, better launch an all-out attack on trans people slandering them as groomers out to corrupt the young and pass laws that deprive them of health care, also ban cross-dressing while you’re at it, enshrine a legal definition of ‘woman’ in law and police it vigorously, there may genital inspections of children and women who aren’t conventionally attractive challenged to prove themselves if they try to use bathrooms, but it’s all worth it because something that may or may not have happened recently in a YMCA.

[Religion and Politics, my life]

WE didn’t have this problem for millenia because your ideas were universally mocked.

Trans people have rights but as people not as trans, that is the founding principle of our country.

[Sam Bankman-Fried]

I’m not a parody account. I’ve been here over a decade and won every argument I’ve engaged in and the novel rationale in my comments has even made it into Supreme Court opinions…maybe it was great minds think alike or the Supreme Court clerks read my comments. I very seriously doubt Supreme Court clerks are still reading these comments anymore and the commenters here are too invested in their narratives for this discourse to continue to be productive for me. Volokh will never engage me on a substantive matter because he knows my arguments undermine some of his most consequential work.

[Nige]

You compare trans people to people with eating disorders a lot. Do you do the same to them?

[Brett Bellmore]

Yeah, I do, because nobody is yet stupid enough to demand free bariatric surgery for anorexics. I’m sure it’s coming, but for the moment it’s still an example of an dysmorphia that the left doesn’t yet champion.

[Nige]

The only free care demanded for anorexics is the best appropriate care as developed through decades of good practice for that condition. You think all conditions must be treated exactly the same as each other. It’s one of the most thuddingly stupid things you claim to believe. Also, it’s weird that you base your cruel bullying of people on whether you as a layman approve of the prescribed treatment for their particular condition. Now that’s arbitrary.

[Religion and Politics, my life]

So, logically, Nige, you must not be a layman. THen why not say so???? Aribtrary is better than lying.

[Brett Bellmore]

“My own tentative view of the Ninth Amendment to the federal Constitution is that it both serves as a rule of construction for the enumerated powers—reminding us not to use the enumeration of rights to infer that the government would otherwise have had the power to abridge them”

That seems like it falls under the ambit of the OTHER amendment the courts refuse to enforce, the 10th:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

They’re both rules of construction: The 9th establishes that non-enumeration doesn’t extinguish existing rights, and the 10th establishes that non-enumeration DOES extinguish federal claims to powers.

And they’re both so inconvenient to the federal government that the federal courts refuse to uphold them.

[Dilan Esper]

The problem with the Ninth Amendment is it doesn’t provide any metric for HOW unenumerated rights are found.

Heck, you, Brett, as a critic of Roe v. Wade, should understand why this is a problem. After all, why can’t abortion be protected by the Ninth Amendment. It doesn’t tell you why it shouldn’t be!

The reality is as much as conservatives dunk on substantive due process, at least those cases provide some semblance of a methodology for operationalizing the guarantees of the Ninth Amendment. And that’s probably the best we can do.

[Brett Bellmore]

But it’s fairly clear, actually:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

“Retained” by the people. You can’t retain something you never had, so the rights that are not to be denied or disparaged on the basis of non-enumeration are the rights Americans already had.

They would have used different words if they’d intended to empower judges to invent new rights. If we as a people want to change the extent of our constitutional rights, increasing or reducing them, that’s what Article V is for.

So the relevant question is what were the extent of our rights at the time the amendment took effect. Not what somebody thinks they ought to be today, THAT is an Article V question, not a 9th amendment question.

[hobie]

Brett, the fallacy of your argument is that until the 1920s women had no say at all in the laws that governed them. Looking to originalism or ‘the time the amendment took effect ‘ where the rights of women are involved is a disservice to them

[Nelson]

““Retained” by the people. You can’t retain something you never had, so the rights that are not to be denied or disparaged on the basis of non-enumeration are the rights Americans already had.”

Yes, that’s why they are called inherent rights. Just because they aren’t identified doesn’t mean they don’t exist.

If you want to claim that a right identified by statute or Supreme Court decision is new and wasn’t always there, how would you go about it?

[Absaroka]

I think Brett has it – would X have been something the 1776 man in the street would have considered to be a right? For an example, let’s suppose the government decides it will be good for people to breed them like racehorses, for the betterment of the species, and so the government assigns you a spouse.

While arranged marriages aren’t unheard of, I think Mr. 1776 would have pretty categorically rejected the notion that the government can assign mandatory spouses like that.

And what part of the constitution stops the government from saying ‘nothing says we can’t assign mandatory spouses, so we can’? The 9th does.

[Brett Bellmore]

At least for the federal government, the 10th does, since there’s no enumerated power to do that. States aren’t bound to only exercise enumerated powers, unless their own constitutions say so, so at THAT level it becomes a matter of rights.

[Absaroka]

“since there’s no enumerated power to do that”

But it affects interstate commerce 🙂

[grb]

Absaroka : “something the 1776 man in the street would have considered to be a right?”

A quick reminder on abortion : In the 18th century and until about 1880, abortions were allowed under common law and widely practiced. They were illegal only after “quickening,” the highly subjective term used to describe when pregnant women could feel the fetus moving. That’s what 1776 man would have considered to be a right.

[Brett Bellmore]

IOW, they were only illegal from the first moment it was possible to objectively determine that the woman was pregnant… Prior to quickening you’d just have been guessing.

Of course, you could pick up the fetal heartbeat with a stethoscope… which was invented in 1860.

So the bottom line was, they DID think they could ban abortion, and when new medical tests demonstrated the existence of a fetal heartbeat prior to quickening, they moved to ban it before then, too.

Somewhat similar to the way fetal ultrasound effected the abortion debate, actually.

[Absaroka]

“Prior to quickening you’d just have been guessing.”

I think you are reaching. Quickening was at 4 to 5 months, so there are a few missed periods in there. The herbal abortifacients sounded pretty unpleasant, so I suspect the women using them were pretty sure they were pregnant.

[grb]

Brett Bellmore : “…and when new medical tests demonstrated the existence of a fetal heartbeat prior to quickening…”

Would that be the Right’s famous “heartbeat” that exists long the heart even begins development? I don’t think 1776 man would confuse an electrical impulse that can be mechanically transposed into a (pleasing) thump-thump with an actual heart. It took the hypocrisy and ignorance of the modern anti-choice movement to do that.

If you’re looking for a real analogy to the Eighteenth Century concept of quickening, why not try viability? Of course that brings us right back to Roe….

[Brett Bellmore]

“Would that be the Right’s famous “heartbeat” that exists long the heart even begins development?”

No, that would be the actual heartbeat that they only started pretending wasn’t one when heartbeat laws made acknowledging it problematic.

[Nelson]

The geart doesn’t form until about 10 weeks. So no, the heart doesn’t exist when the “heartbeat bills” claim.

[Nelson]

“IOW, they were only illegal from the first moment it was possible to objectively determine that the woman was pregnant”

No. That’s not what quickening means. It is the first moment a mother can feel the fetus move. Well after a woman knows she’s pregnant.

[MatthewSlyfield]

“Heck, you, Brett, as a critic of Roe v. Wade, should understand why this is a problem. After all, why can’t abortion be protected by the Ninth Amendment.”

And the court in Roe v. Wade could have said plainly and simply that they were recognizing a right to abortion under the ninth amendment, but they didn’t do that.

[Religion and Politics, my life]

You both are pursuing a positivist approach, and none of the Founders were positivists.

“When the Fourteenth Amendment was adopted in 1868, the states widely recognized unborn children as persons. Twenty-three states and six territories referred to the fetus as a “child” in their laws prohibiting abortion. Twenty-eight classified abortion as an “offense against the person,” or a functionally equivalent classification. These statutes were enacted in recognition of unborn human beings’ full and equal membership in the human family. In Ohio, the same legislature that ratified the Fourteenth Amendment in January 1867 passed legislation criminalizing abortion at all stages just three months later. Several senators who voted for the Fourteenth Amendment’s ratification sat on the committee that reviewed the anti-abortion bill.”

[Artifex]

Wrong spot

[ReaderY]

A basic flaw in the argument is that state constitutions address only 2 sovereigns, the state and the people. The federal government largely takes away the power of states and their courts, and their constitutions, to determine or indeed have any say about what the rights of the federal governemnt are. So among the rights states could potentially possess and a state constitution has the power to assign ownership to, rights not belonging to the state unambiguously belong to the people.

But at the federal level there are 3 sovereigns, the federal government, the states, and the people.

In a 2-mode logic “not X” means it must be Y. But in a 3-mode logic, “not X” doesn’t tell you whether it’s Y or Z. It leaves that question unanswered. It’s the same language in both cases. But the difference in context means that identical language does not have the same meaning. This is how logic works.

This is the situation here, and it is the fundamental logical flaw in the assumption underlying the book Professor Baude reviews, that the i enumerated rights language in the 9th Amendment to the federal constitution should be interpreted to mean the same thing as identical language in unenumerated rights clauses in state constitutions. In state constitutions, with only 2 sovereigns to address, rights not belonging to the states can only belong to the people. But moving from 2 sovereigns to 3 changes the logic from a 2-value logic to a 3-value logic. And that means that a simple disclaimer of federal rights no longer determines which other sovereign those rights belong to, the states or the people. Nor does it necessarily imply the federal governent, or its courts, has any power to adjudicate or indeed involve itself in disputes between the other sovereigns about rights the federal government does not possess.

[Stephen Lathrop]

In short, decapitated constitutionalism is a mess.

[Nelson]

“what the rights of the federal governemnt are”

“So rights not belonging to states unambiguously go to the people.”

“In state constitutions, rights not belonging to the states can only belong to the people.”

IANAL, but I thought that rights never belonged to the government, only to the people. The Constitution defines who is responsible for defending (or, in some cases, failing to defend) those rights, but they never belong to anyone except the people. Is that correct?

Said another way, rights are held by the people (X) and neither state (Y) nor federal (Z) government (not-X, in your framing) may take them away. Logically, no right is not-X. It’s like claiming your brain could belong to someone else.

It seems like you are making the argument that if a state or federal government can claim sovereignty (and in our system it’s one or the other, never neither), those rights, because they are unenumerated, are no longer inherent.

[Stephen Lathrop]

In our system (absent decapitated constitutionalism), it is neither. Neither state governments nor the federal government can claim sovereignty. That belongs to the People. If you forget that, it may not too much inconvenience your thinking about some topics pertaining to government. But when you are talking about rights you have to remember it, or self-contradictory assertions are guaranteed.

[ReaderY]

I recognize I oversimplified the logical flaw issue anove, understanding the 9th Amendment mentions the people. But it disclaims the rights of the people vis-a-vis the federal government, not necessarily their rights vis a cis the states. So the existence of a 3rd alternative sovereign, not present in state constitutions, is still relevant, and the analogy between 2-value and 3-value logic and the difference between state and federal constitutions still applies.

[Nelson]

“not necessarily their rights vis a cis the states”

So your argument is that the rights retained by the people (according to the Constitution) can be denied by the states?

So Constitutionally protected rights aren’t inalienable, they are only inalienable federally?

Are you saying the only rights people have are the ones each state chooses to give them? So, for example, a state could decide that people don’t have the right to be secure against unreasnable dearches and seizures, pass a law to that effect, and the Fourth Amendment becomes irrelevant?

[Religion and Politics, my life]

There are several state constitutions that acknowledge the people as the ultimate power.

[hoppy025]

The most important unenumerated rights in our system are the right of a woman to kill her unborn baby and the right of a gay man to shoot off into his “husband’s” rear.

Everything else must yield to these.