The Volokh Conspiracy
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Anthony Sanders (Institute for Justice) Guest-Blogging About "Baby Ninth Amendments"
I'm delighted to report that Anthony Sanders, a senior attorney and Director of the Center for Judicial Engagement at the Institute for Justice—one of the country's foremost libertarian public interest law firms—will be guest-blogging this coming week about his new book:
Here's the summary, from the book jacket:
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. However, we do not need to enumerate every liberty because there is another way to protect them: an "etcetera clause." It states that there are other rights beyond those specifically listed: "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, 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 and what they mean. 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.
And from the blurbs:
"In this provocative work, Sanders carefully traces the adoption and interpretation of the Baby Ninths across time and space—masterfully illustrating how studying the history and development of state constitutional provisions can enhance our understanding of both the federal Constitution and the rights that it and the state constitutions protect."
—Maureen Brady, Harvard Law School
"For more than two centuries, Americans have included 'Baby Ninth Amendments' in their state constitutions, aimed at securing all of our rights, not just the few that drafters are able to enumerate in a bill of rights. Courts, however, have largely ignored those amendments—and with that, have undermined the rule of law. Thanks to Anthony Sanders, we now have a deeply researched account and analysis of that history. This book is a major contribution to the scholarly effort of the past several decades to reestablish the fundamental principle of American constitutionalism: individual liberty through limited government."
—Roger Pilon, Senior Fellow in Constitutional Studies and Founding Director Emeritus, Center for Constitutional Studies, Cato Institute
"Anthony Sanders has drawn upon a long career of advocacy and scholarship on state constitutionalism and individual rights to offer a novel, insightful, and refreshingly controversial take on the question of whether the text of our state constitutions are all inclusive. Spoiler alert: There are unenumerated rights! He takes us through the architecture, theory, and ideology of these baby ninth amendments to reveal a truly new way of thinking about the scope of governmental power-at the subnational level, whether the rubber really meets the road-and the contours of our vital civil liberties. There is much to learn, and much to argue with, in this terrific book by this learned lawyer."
—Daniel B. Rodriguez, Harold Washington Professor and former Dean, Northwestern University Pritzker School of Law
"Alexander Hamilton once said that human rights 'are not to be rummaged for among old parchments,' but 'are written, as with a sunbeam, in the whole volume of human nature.' But in this book, Anthony Sanders does the 'rummaging' necessary to show us that the rights of human nature aren't just a matter of theory—they're embedded more deeply in our constitutional law than many of today's scholars or judges are willing to admit. With his combination of scholarship and advocacy, Sanders has done us a tremendous service—helping revive one of the most important and unjustly neglected elements of our country's 200+ year constitutional tradition. I predict that this will prove to be the decade's most important book on constitutional law."
—Timothy Sandefur, Vice President for Litigation, Goldwater Institute, author of The Conscience of the Constitution
"If the federal Ninth Amendment is misunderstood, one can imagine the misunderstanding of the 'Baby Ninths' in many state constitutions. Anthony Sanders' book successfully confronts this situation at an important point in the continuing discovery of state constitutions and their importance. Sanders provides in-depth analysis of the origins and spread of these state provisions as the country expanded and state constitutions evolved. He assesses and criticizes the state courts' interpretations of the provisions and gives some prescriptive opinions for the future. This book will be the standard work on Baby Ninths for the foreseeable future."
—Robert F. Williams, Distinguished Professor of Law Emeritus, Rutgers Law School, author of The Law of American State Constitutions