Baby Ninth Amendments Since 1860: The Unenumerated Rights Americans Repeatedly Want (and Judges Often Don’t)
58 Pages Posted: 8 Mar 2018
Date Written: March 1, 2018
Americans have deliberately chosen to explicitly protect unenumerated rights dozens of times. On sixty-six occasions, groups of Americans charged with crafting a fundamental law for their state have written, and had adopted, a state constitution that includes a “Baby Ninth Amendment.” These provisions, modeled after the Ninth Amendment itself, can only be understood to protect individual rights. Today they are a part of thirty-three state constitutions. They demonstrate unenumerated rights are not just constitutional. They are popular.
Well, they are popular with the people. With judges it is a different story.
This is my second article about these provisions. In my first article I told the history of their invention and adoption in the antebellum era, and I demonstrated that their original meaning is that they protect unenumerated individual rights and are judicially enforceable. In this Article, I complete the job of telling their history, from 1860 through today. This includes how Americans repeatedly chose to include protections of unenumerated rights in their state constitutions, but also how judges have more often than not winced at doing what the provisions command them to do. Although some judges have taken Baby Ninths seriously over the years, for the most part they have systematically ignored them, abdicating the commands of their citizenries to protect unenumerated rights. The Article concludes with some thoughts about why we have so many Baby Ninths and why courts have mostly ignored them. It calls upon state judges to do what their constitutions require them to do: protect unenumerated individual rights to the same degree as the rights explicitly set forth in their constitutions.
Keywords: originalism, state constitutional conventions, legal history, baby tenth amendments, baby ninth amendments, unenumerated rights, state constitutions, judicial engagement, rational basis test
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