The Volokh Conspiracy
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Baby Ninth Amendments Part IV: All the Rights but Not ALL the Rights
Baby Ninths assume a Lockean social contract—not a Hobbesian one. They protect Lockean rights but not positive or procedural rights.
You might call this post "The Big Mac." I'm getting to the meat of the issue: What rights do Baby Ninths protect, and how do these state constitutional provisions protect those rights?
You can see the previous three in this series here, here, and here, all of which summarize my new book from the University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (available for free here).
First let's take a 30,000 foot view of what we're talking about: a specific type of provision with specific words with variants in thirty-three state constitutions. We are not talking about "rights" generally or what we would put in a constitution ourselves. You could imagine a state constitution that says something like everyone has a right to "a minimum annual income." Or "adequate housing." Or even something wide-open like "what one needs to live a fulfilling life." For various reasons I think those provisions would be bad. But if they were in a constitution, you would have to admit they were "constitutional rights." Indeed, some fellow libertarians may not like this, but many state constitutions already make a state provided primary education a right. What the text says matters.
With that level-setting, let's look at what Baby Ninths protect. For guidance, we're first going to see what various scholars have said about the Ninth Amendment itself. Since the text is always very similar between the Ninth and Baby Ninths, this will hopefully give us a good start.
VC member Randy Barnett once helpfully organized five various originalist "models" about what the Ninth Amendment meant when it was adopted. I take those five approaches in my book, plus a more recent one—of Professor Michael McConnell—and apply them to Baby Ninths. I don't take sides in the book on their merits vis-à-vis the Ninth, but I argue that none of them make sense when interpreting a Baby Ninth other than the "individual rights model."
Some of them—such as the "federalism model" and the "state law rights model"—don't for obvious reasons. For one thing there's no "federalism" to worry about. The others models don't work either, including the "collective rights model." Although it has received a small bit of support in the caselaw, it doesn't work because the "collective rights" of the people of a state are elsewhere provided for in a state constitution via the legislature and via the constitutional amendment/convention process. Believing that Baby Ninths protect collective rights is to believe that Rube Goldberg designed your state constitution.
I also look at non-originalist views of the Ninth Amendment and conclude they don't hold up either to the extent they are inconsistent with protecting individual rights. Baby Ninths only make sense if they're actually doing something—protecting rights—and if the rights they're protecting are individual rights.
That still leaves open what kind of individual rights Baby Ninths protect. Indeed, turning back to the Ninth Amendment for a moment, both Professor Barnett and my former teacher Professor Dan Farber believe the Ninth Amendment itself protects individual rights, but they disagree on what those rights are. (Barnett: "yes" on personal and economic rights, "no" on positive right to an education. Farber: the opposite, except also "yes" on personal.)
In speaking with others, I find that this is the issue that scares many conservatives. "Oh my goodness, judges could just impose any right they want!" Well, if a state constitution actually said that then, yeah, judges could. Again, we're talking here about what constitutions say and mean, not what they should say and mean. But that's not the case because of how Baby Ninths are written.
Let's look at one, Nevada's: "This enumeration of rights shall not be construed to impair or deny others retained by the people." The key word here is "retained." What does that mean? It is inherently a term of social contract theory. You may believe the whole idea of a social contract is made up (indeed, I agree!) and even a terrible way of looking at rights and society. But it's the background for interpreting this language—and for lots of other language in state constitutions. As Roger Pilon recently put it in this lecture, it's a useful thought experiment. It helps us conceptualize the liberties we possess as individuals versus how we interact with other people.
"Retained" refers to the idea that we have certain rights in a state of nature but that when we form a society, we give up some but not all of those rights. Now, it could be that when we form a social contract we give up all of our rights, like with Thomas Hobbes' Leviathan. But (for good reason!) no state constitution has even gone the way of Hobbes. Americans have wisely sided with Locke.
You could make the case that "retained" just means rights people had at the time the relevant constitution was adopted. But I dig into this idea in the book and find it leads to absurd results. For example, why wouldn't it then encompass statutory rights? What if there were some odd statute that provided a positive "right"—I give the example of a right to have a pony—that existed right before the constitution was adopted. Could it then never be repealed? Instead, the much better reading of Baby Ninths is to simply treat them as protections of Lockean "state of nature" rights.
That means that Baby Ninths protect rights such as the examples I gave in Part I that our friend Jane enjoyed: the right to earn a living, right to garden, right to eat what you want, right to collect stamps, etc. It does not include positive rights—the right to demand that others (including the government) give you stuff or do things for you. And that includes procedural rights, such as a right to a jury trial or a right to see evidence used against you. Now, those are important rights! But they're protected through other language, such as specifically in the Sixth Amendment, or other kinds of open language such as "due process of law."
At this point some skeptical readers may be thinking: "He's arguing Baby Ninths allow people to do anything they want as long as they don't violate someone else's rights, as if they guarantee a nightwatchman state." And you might quip that "state constitutions do not enact Mr. John Locke's Social Contract," to steal a phrase.
In response, first, I do not claim Baby Ninths must be interpreted through the exact wording of Locke's philosophy. It's just the idea of giving up some rights but retaining others that needs to be kept in mind. Those "some" are few (the right to retribution most importantly), the "retained" are many. Second, I do not claim that the government cannot do anything that regulates "retained" rights. I only claim that they must be protected at the same level (deny/disparage/impair) as enumerated rights and, thus, given some degree of real protection. When we think about free speech or religion, for example, we recognize that there are things the government can do in order to pursue legitimate public purposes even if they bump up against those rights. They're not absolute. The same is true for the right to earn a living or the right to garden.
How does this work in practice? More on that in Part V tomorrow, plus some big picture thoughts. But basically, judges need to take Baby Ninth rights seriously. In constitutional-law-speak, that means they don't need to apply strict scrutiny, but they do need to apply some real scrutiny—not the rational basis test.