Baby Ninth Amendments Part II: The Invention of Unenumerated Rights

Like most things in law, unenumerated rights clauses took some time to emerge. But once they got going, they spread to all Four Corners of the country. [UPDATE: I inadvertently posted this under my name initially; but it's of course Anthony Sanders' post. -EV]

Yesterday I started these Baby Ninths posts (summarizing my new book, from University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters–available for free here) with a thought experiment about why we might want an "etcetera clause." Today we're going to take a quick overview of the history of that kind of clause in state constitutions. It was a slow, but steady, process where various groups of Americans repeatedly solved the same problem our friend Jane encountered: How do we protect the infinite possible exercises of our liberty with a finite constitution?

In the beginning there were no unenumerated constitutional rights. And that's because there were no constitutional rights, period. Excuse me, I should have said full stop. Because I'm speaking of the British Constitution. As discussed on a recent podcast I hosted, the British Constitution is a thing that exists, but it's not written down in one place. And in some respects it's simply the sovereignty of the "King in Parliament." At times in their history the British have speculated there might be "rights" that even Parliament cannot abridge (most famously some musings from Lord Coke), but that had essentially died out long before the American Revolution. In their revolutionary fever, however, Americans mused anew, threw off the sovereignty of Parliament, and adopted "the people" as sovereign. And this "people" acted through adopting written constitutions that were a "higher law" than the legislature. And a neat thing about a written constitution is you can put "rights" in it that the legislature cannot abridge.

The first full-fledged bill of rights was Virginia's Declaration of Rights, which George Mason drafted in the spring of 1776. It had many enumerated rights we'd be familiar with, but also some pretty broad language, such as "the enjoyment of life and liberty" and "pursuing and obtaining happiness and safety." The provision was later copied in numerous other state constitutions.

Were they "etcetera clauses"? If not they're pretty close. Steve Calabresi calls them "Lockean Natural Rights Guarantees," which seems a pretty good description to me. (For their story check out an article he co-authored.)

Then came Philadelphia in 1787 and all that. And shortly thereafter the amendments we now call the Bill of Rights. There's not space here for the story of the Ninth Amendment itself. As I said yesterday, some people, like Randy Barnett, think it means what it says and protects rights beyond those enumerated. Some, like Kurt Lash, think it's basically about federalism. There are other takes too that I summarize in the book.

Whoever is right about the Ninth—my book is Switzerland when it comes to interpreting the Ninth Amendment itself—it's definitely true that it was new. There's no example of its language in use in any document before 1789. Afterward is a different story.

Today, no U.S. state has adopted a new constitution since Rhode Island did in 1986. That's super weird in U.S. history. States used to hold conventions and adopt new constitutions all the time. The years after 1789 were no exception. Many states adopted constitutions in the 30 years after the Ninth Amendment was drafted. They put all kinds of things in their bills of rights, including Lockean Guarantees. For whatever reason, none included Ninth Amendment language—although a few adopted what I call "Baby Tenth Amendments."

Then, in July 1819, the almost-state of Alabama was holding a constitutional convention. Its bill of rights committee was tasked with drafting something up. And after a week of work out emerged a list of rights with these words as part of the last provision: "This enumeration of certain rights shall not be construed to deny or disparage others retained by the people . . ."

Hmm, that looks kind of familiar, doesn't it? Why did the committee put it in there, and who specifically suggested it? Alas, I've never found anything in a dusty or digital archive definitively telling us why. In any case, although other provisions were fiddled with in the full convention this one stayed in as is. Whatever the delegates' subjective reasons were, it then became part of Alabama's first constitution. (I don't think it matters that much for future interpretation, especially outside of Alabama, because I'm an original public meaning originalist, something I talk a bit about in the book. But it still would be neat to know.)

Then, three months later, Maine was holding a constitutional convention to help seal its emancipation from Massachusetts. And, in similar unrecorded fashion, its bill of rights committee had this at the end of its draft: "The enumeration of certain rights shall not impair nor deny others retained by the people." It then became part of the Maine Constitution, which is still in force today. (By the way, notice the lack of "construed" and the swapping of "impair" for "disparage"? A handful of states dispense with the "construed" language and many include "impair" instead of, or in addition to, "disparage.")

After that—despite a number of constitutional conventions in various states—it wasn't until 1836 that a state adopted another Baby Ninth, in Arkansas. But then a few more came along, including states that were on their second constitution: Maryland, New Jersey, and Ohio. By the eve of the Civil War a dozen states had adopted one.

Reconstruction accelerated this trend. A couple states dropped Baby Ninths in the whirlwind of constitution-making in the years after the war, but more adopted them. And those states that dropped them added them back in at the next convention a few years later. Then, with westward expansion, the popularity of Baby Ninths accelerated even more. Indeed, of all fifteen states added to the Union since West Virginia in 1863 the only ones to not include a Baby Ninth are North and South Dakota. (Why them? I don't speculate in the book but I'm currently working on a paper to see if I can figure that out.)

It's not all wine and roses for Baby Ninths, as South Carolina dropped its in 1895 and Missouri did in 1945. But those are more than countered by other states adopting them. The latest two are Michigan in 1963 and Illinois in 1970. As of now thirty-three states—two thirds of the Union—have language extremely similar to the Ninth Amendment in their higher law.

What did the delegates who adopted these provisions think of them? Luckily some states kept better records than 1819 Alabama and Maine. We'll turn to that in Part III. We'll also look at what state courts have thought of them. The tl;dr is the delegates thought they protected individual rights. The courts' verdicts are more mixed, but it's mostly a story of neglect. Courts have left Baby Ninths lonely despite their language sitting there waiting to be used to protect rights "retained by the people." There are a fair number of cases where courts have found laws to violate individual rights via a Baby Ninth. But often the laws are upheld under a kind of rational basis review. And even when state courts do protect unenumerated rights via state constitutions it's through more ill-suited provisions, such as due process clauses.

Comments

[ReaderY]

There are fundamental problems when unelected judges simply decide major social controversies based on nothing but their own ideas. A right to own a slave, a right to work unlimited hours, a man’s right to beat or have sex with his wife, were all found to be protected rights at one time or another in our history, and have been deeply regretted.

There is a danger both in conservatives protecting the historic powers of the powerful from the reach of any reform, and liberals protecting radical and untried change from the reach of any criticism.

[OtisAH]

Noted textualist Clarence Thomas does not believe there are any unenumerated rights no matter what the text says.

[The Margrave of Azilia]

I think the last Justice to use the 9th Amendment was Arthur Goldberg in 1965 (Griswold case).

The references to “rooted in history and tradition” seem to come close, though they rely on the much-invoked Due Process clause, skipping the 9th.

Hugo Black and plenty of others since him were worried that unenumerated rights would in practice be used by judges as a jurisprudential Horn of Plenty, pouring forth the judges’ idiosyncratic policy preferences over the land.

There’s a middle ground which involves looking for deeply-rooted rights, recognized as such by historic treatises, statutes, or even actual practice, and if 9th Amendment-invoking judges could stick with that then I say walcome back to the family, 9th Amendment!

[Syd Henderson]

My thought is that Heller should have been partly decided by the Ninth Amendment since the 2nd doesn’t address self-defense.

[Stephen Lathrop]

Syd Henderson, not a bad thought. But not an easy one to implement. To argue via a 9A interpretation you would need to demonstrate not just a relatively unfettered gun culture well established at the time of the founding, but also show that a particular gun culture was interpreted fairly uniformly among the states, and among different classes of people in each state and locality. To get to a preferred modern pro-gun advocacy position via a forthright 9A interpretation, you would also have to show that gun prohibitions or carry regulations were not generally practiced. I think that last bit would defeat the effort.

[Krychek_2]

The problem, though, with limiting rights to those rooted in history and tradition is that social values change, usually long before legislatures and courts catch up. Speaking of Griswold, the country was probably ready for legal birth control long before they could get it from the politicians, who tend to be more socially conservative than their citizens. Ditto marijuana legalization. Ditto inter-racial marriage. Ditto gay marriage. So the question is how long should people have to wait before their foot-dragging (when not knuckle-dragging) legislators get dragged, kicking and screaming, into modern times.

I recognize the risk in giving nine unelected lawyers a blank check to set social policy. Maybe there could be some middle ground in which judges are allowed to take notice of where the culture currently is on specific issues.

[ReaderY]

They don’t have to wait long. People can just vote them out at the next election. If they don’t, the only legitimate conclusion is that they want them there.

[Krychek_2]

No that’s not the only legitimate conclusion. Not even close. Inertia, gerrymandering and apathy are far more likely to explain how we end up with legislatures far more conservative than we are. You seriously think that when Griswold was decided in 1965 Connecticut voters weren’t already ready for legal birth control?

[Stephen Lathrop]

There’s a middle ground which involves looking for deeply-rooted rights, recognized as such by historic treatises, statutes, or even actual practice, . . .

Headway!—”or even actual practice . . .” Kudos.

Just two more steps to go:

1. What methods best equip a person to say at some distant point in the past what, “actual practices,” actually were?

2. What profession makes it a matter of professional discipline to develop canons to infer on the basis of actual practices context of creation for antique texts which happen to have survived into the present—and on that basis deliver textual interpretations free of present-minded inflections?

Margrave, you have been selling yourself short. There is hope for you.

[The Margrave of Azilia]

Historians have their biases as much as judges or lawyers.

The Constitution is addressed to the understandings of intelligent, civically literate citizens, but that doesn’t mean citizens have to be specialists in law and/or history. Not that your educated citizen will automatically have the answer to an interpretive question on the tip of his or her tongue, but s/he should be able to read the jurists’ analyses, understand them, and check them for flaws.

Indeed, historians would apply pure historical methods even to Constitutional provisions which should be interpreted using other benchmarks. Not all historians are originalists, but focusing on historical analysis would give aid and comfort to originalism, which I’m not into.

Historical analysis should be subject to limits which historians themselves may not recognize – for instance looking at legal treatises rather than the biographies and supposed secret meanings of the treatise authors.

But go ahead and appoint historians as judges and see if you get better results.

[jdgalt1]

I would be interested to hear why, in the author’s opinion, neither the Magna Carta nor the Bill of Rights 1688 is a “full fledged bill of rights.”

[Stephen Lathrop]

jdgalt1, start with the insight that both were texts written in context of a class-based society. In practice, that meant that for the vast majority they were not proclamations of rights so much as they were exclusions of them.

You may then find yourself tempted to say, “Well, sure, but when intellectual descendants relied on that history to re-craft society in a less-class-based mode, they broadened and extended those rights to everyone.” If you do that, ask yourself how you know whether that is actually what happened. Do your very best with that question. For every inference you rely on, ask “On the basis of what evidence do I know that?”

And by the way, you will probably have to neglect the author’s opinion, even if he tells it to you. He is a Lockean theorist, not a historian.

[Jason Cavanaugh]

“ And by the way, you will probably have to neglect the author’s opinion, even if he tells it to you. He is a Lockean theorist, not a historian.”

Stephen Lathrop everyone: the gatekeeper of which opinions are important. Qualifications: He edited a newspaper sometime before color television.

[Stephen Lathrop]

Cavanaugh, you have no idea what my historical qualifications might be. And you are wrong about color television. Where I was, there was no television at all. But you also know nothing about that experience. Even if I had illustrious credentials, I wouldn’t parade them. It would just get in the way of engaging substantively, on the basis of what we could find to say in these comments. I wish you could find more to say substantively yourself, so we could talk about it.