The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Unenumerated Rights

Baby Ninth Amendments Part III: "An Unwritten Constitution"

What have people said about the Baby Ninths since they were first adopted in 1819? Delegates thought they protected unenumerated rights. But judges have mostly failed to put them into action.


In this third installment 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), I'm going to briefly summarize what two particularly important sets of people have said about Baby Ninths: Delegates to constitutional conventions and state judges. This will just be a tiny sample of what's in the book, but hopefully it will give you a peek at the bigger picture.

State constitutional conventions are a super fun slice of American history. I don't want to over-valorize them, and there's plenty of examples of shameful moments in the roughly 200 times a state has adopted a new constitution. But overall they're a hopeful story of state residents coming together to write something enduring. All kinds of ideas are debated that don't normally come up in run-of-the-mill legislative assemblies. Often the delegates aren't standard politicians—sometimes they're just farmers or tradespeople—so you get outside-the-box thinking. And given the time scale and generality of the product they're drafting, the normal "special interest" machinations aren't as clear.

There aren't that many accounts of Baby Ninths being debated on convention floors. Partly this is because many conventions were cheap and didn't hire court reporters, and partly it's because often Baby Ninths (along with many other provisions) were adopted without debate. But of comments that survive there's a surprising message that today's "positivist" age might be surprised by. And that's that some delegates objected to Baby Ninths not because they protected unenumerated rights, but because they weren't needed to protect unenumerated rights. That is, unenumerated rights were protected from government even without language protecting them!

For example, a delegate, Mr. Parke, introduced a Baby Ninth to the Maryland convention of 1850-51. He said that "it was a mere assertion that there were rights not enumerated in the declaration of rights, and that they were retained by the people." When asked what those rights were, he said, "They were very numerous—so much so as to render it impossible to include them in the bill of rights." In response, someone argued that since "the bill of rights took away no rights" all of those rights remained anyway and the proposal wasn't needed. (It then narrowly passed.)

Similar disputes occurred in California (1849) and Minnesota (1857). Some of this debate may have been because of a more limited view of state powers in the nineteenth century. But if that view is rejected in today's "enlightened" age, then Mr. Parke's precaution is even more necessary to protect unenumerated rights.

When addressing Baby Ninths in the twentieth century, delegates have broadly stated they protect rights beyond just those in the state bill of rights. This includes New Jersey (1947 constitution), Michigan (1963), Illinois (1970), and Montana (1972).

In court the story is more mixed. Baby Ninths have mostly been ignored. Which is pretty discouraging, because they're right there in the text. When judges have addressed Baby Ninths, they actually have interpreted them to be "etcetera clauses," as I argue they should be. Even so, despite Baby Ninths' explicit commands to not "deny or disparage/impair" unenumerated rights just because they're not enumerated, that's generally what courts have done.

One exception to the Baby Ninths' neglect is Iowa in the 1860s. In a fascinating series of opinions, two sides of the state supreme court sparred about unenumerated rights vs. legislative power. The cases mostly concerned state involvement in railroad expansion. The two biggest combatants were Justices Joseph M. Beck and Chester C. Cole.

In a nutshell, Beck thought that Iowa's constitution expansively protected individual rights because of the Baby Ninth. In an 1869 case he said it "provides that the enumeration of rights contained in the Constitution shall not be construed to impair or deny others retained by the people. There is, as it were, back of the written Constitution, an unwritten Constitution, if I may use the expression, which guarantees and well protects all the absolute rights of the people" (emphasis in original). He went on to give examples of these rights, which makes you suspect the U.S. Supreme Court later cribbed from him in its famous unenumerated rights case of Meyer v. Nebraska (1923).

This scared the dickens out of Justice Cole. He first disagreed with Beck's interpretation. But he further said that it essentially was an unthinkable conclusion because it would leave far too much power in the hands of judges and too little in the hands of the legislature. What Cole did not address is the possibility that the framers of the constitution wanted to limit the legislature through "retaining" unenumerated rights.

Whichever side you take, this exchange between Beck and Cole is a rare example of the issue distilled to its essence: Do we protect these "very numerous" rights that the constitution explicitly mentions through judicial engagement, or do we look the other way and defer to the legislature?

There are a few other examples of state courts taking Baby Ninths seriously. I expanded on material in the book in a recent set of nine blog posts that you can read here. In one, the Michigan Supreme Court protected the right to provide housing by allowing developers to open trailer parks over NIMBY opposition. In another, a barber and a dry cleaner in Alabama won their right to offer services below a minimum price set in a New Deal-era price-fixing scheme.

Most of the time, though, courts confronted by Baby Ninths have told litigants: "Yes, it does protect your unenumerated right, but we must be reasonable. And so let's defer to what the government wants to do." The most brazen example was a Louisiana case where a court said, "This provision implicitly accords those rights not specifically recognized by the Constitution less gravity than the enumerated rights." Really? Is that what "shall not deny or disparage other rights retained" means?

State courts have often protected unenumerated rights over the course of U.S. history. But more often than not they've used less suitable provisions, like due process clauses. Now, I am not a critic of "substantive due process." I think it's a real thing. But when your constitution has an explicit unenumerated rights clause, why not use that instead of a controversial doctrine that attracts so many good-faith critiques?

It's kind of flabbergasting how neglected Baby Ninths are in this way. For example, since the state adopted a Baby Ninth in 1970, an Illinois appellate court has quoted it once. Those same courts have mentioned "substantive due process" hundreds of times.

What's going on here? Partly it's judges sticking with what's (for whatever reason) familiar. But it's also lawyers not raising Baby Ninths claims. Part of the hope for my book is not just that judges will start taking Baby Ninths more seriously, but that lawyers will raise more claims under them.

Tomorrow, in Part IV, the question you've all been waiting for: What do Baby Ninths mean? What rights are protected, what rights aren't, and how?