Baby Ninth Amendments

Front matter

How Americans Embraced Unenumerated Rights and Why It Matters

ADDITIONAL PRAISE FOR Baby Ninth Amendments

“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! There is much to learn, and much to argue with, in this terrific book by this learned lawyer.”

Introduction

6 What Individual Rights Do Baby Ninths Protect? Afterword: What Do Baby Ninths Tell Us?

APPENDIX NOTES

Xi

149 161

Acknowledgments

My idea of writing about Ninth Amendment equivalents in state constitutions goes back almost an entire Jeffersonian cycle. During law school at the University of Minnesota I nearly took a seminar on state constitutional law, but, probably in deference to “more important” classes, chose not to. I later kicked myself for that as my roommate David Asp told me of the interesting ideas he was picking up from Professor David Schultz. Thank you to both of them, even if indirectly, for launching my fascination with state constitutions.

At some point I linked in my head state constitutions with the overtwo-century injustice of the Ninth Amendment getting no respect. It may have been when I was clerking at the Montana Supreme Court and noticed a “Baby Ninth” in the Montana Constitution. But after many months of my co-clerk Jared Pettinato and I gabbing about state constitutions, unenumerated rights, life, the Universe, and everything (when we weren’t drafting opinions), I put the practicalities of state constitutionalism to one side and headed off to a firm job in Chicago. There, when the boss wasn’t barking orders (one of our former clients had connections to the Mob, and the firm was run similarly), I slowly compiled the various Ninth Amendment analogues on a Word document and tucked it away for later. It was only after I arrived in 2010 at my present employer, the Institute for Justice, that I made further inroads.

Those inroads were primarily enabled through the wonderful clerks and interns we have at the Institute for Justice. They’ve gone on to varixii - Acknowledgments ous careers, and I have already thanked them in my previous articles, but they very much deserve it again. Maxwell Czerniawski, Rebecca Furdek, Jonathan Gammon, Cameron Gower, Chris Hanson, Bryan Huntington, and Dan Loeser learned a lot about state constitutional records and constitutional convention transcripts, all of it helpful to me and hopefully, in some esoteric way, to them. After some writing and a number of others reading a few drafts—including my fabulous colleagues Ari Bargil, Michael Bindas, Margaret Daggs, Sheldon Gilbert, Clark Neily, and Justin Pearson (of those I can remember)—I submitted and published two articles, one on “Baby Ninths” before the Civil War and, later, one for subsequent history.

This book draws heavily from both articles and then expands on their research and analysis. The articles are Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War, published in the Mercer Law Review in 2017 (vol. 68, p. 389) and Baby Ninth Amendments Since 1860: The Unenumerated Rights Americans Repeatedly Want (and Judges Often Don’t) published in the Rutgers University Law Review in 2018 (vol. 70, p. 859). I have nothing except extreme appreciation for the many student editors—some of whom are unknown to me—who shepherded these pieces from raw submissions to final articles. Those whose names I know are then-students Joanna Gardner, Blair Gerold, Christina Lidondici, Savanna Roughen, Stephanie Terzano, and Alexis Way. Thank you. In addition, Professor Robert Williams, the dean of state constitutional law, kindly invited me to submit to Rutgers and has also provided repeated encouragement over the years. If you want to write about state constitutional law you’re best off talking to Bob.

Writing scholarship is one thing. Writing a book is a whole different matter. This project could not have made it to the book stage without many fantastic colleagues. Two who warrant special mention are Scott Bullock, president of the Institute for Justice, and John Kramer, our vice president for communications. Scott somehow believed that a book about “babies” could grow into so much more. And Kramer (as the world calls him) moved the text along from jargon-heavy law-speak to something resembling prose. He also put all he has learned from more than three decades in the media business (and being an author himself) into finding a home for this codex. Further, Bob McNamara gave special insight when Kramer and I did not agree on edits (Bob, rightly, said Kramer was correct). Dana Berliner brilliantly gave me the idea for the introduction to demonstrate all the liberties inherent in someone going about their daily life. Our CFO Dan Knepper lent his unlawyerly (in such a good way) business touch and good nature. Evan Lisull applied his unri-

Acknowledgments + xiii valed editing skills. Adam Shelton provided loads of helpful thoughts and politely listened to me even when I wasn’t making sense. Kim Norberg, without solicitation, continually affirmed the worth of this project from a non-lawyer perspective. Dick Carpenter rendered the kindest of publishing advice. Bert Gall gave constant support, especially during the long, uncertain pauses inherent in publishing. Don Wilson and Laura Maurice-Apel lifted me up with their artistic touch. And so many others not mentioned here assisted me through countless discussions on unenumerated rights, state constitutions, and the difficulties of reading the compilations of Francis Newton Thorpe. Speaking of which, this project would be impossible without the amazing resources projects such as the Internet Archive, Google Books, and HathiTrust have given to low-level researchers and scholars like me. Their work is an incalculable gift to humanity.

In finding a publisher, special thanks goes to Andrew Davison for getting Elizabeth Demers at University of Michigan Press interested in my manuscript. Thank you Andrew, as Elizabeth and the Press could not be more delightful to work with. She, Haley Winkle, Kevin Rennells, and the rest of its staff and board have been encouraging, receptive, and extremely constructive in taking what I gave them and turning it into a work so much better. That includes the outside, blind reviews I received. Thank you whoever you are. Elizabeth has also helped explain to this book novice many confusing aspects of modern publishing and answered innumerable anxious questions. To her and her colleagues I owe an immense debt of gratitude.

Many others who had a part to play, and to whom I give my sincere thanks for various readings, conversations, and email exchanges over the years, are Randy Barnett, David Bernstein, Keith Blackwell, Stephen Calabresi, Dale Carpenter, Judge Stephen Dillard, Mitchell Gordon, Jonathan Den Hartog, Louis Seidman, and Michael Stokes-Paulsen. Also special mention to John Yoo for first using the wonderful term “Baby Ninths” in print, and to Akhil Amar, who told me that Yoo, his student, heard Amar say “Baby Ninths” in class and adopted it. Finally, thank you to my parents for always encouraging me to ask questions (and tirelessly answering them), and my wife Amy and our children Geneva and Everett for making every day of writing an unenumerated joy once I leave the keyboard. Dad loves you all. Etcetera, etcetera.

Anthony Sanders West Lakeland Township, Minnesota May 28, 2022

Introduction

Take an average American. We will call her “Jane.” Think about what she may have done yesterday.

Jane rose at a time best suited to her schedule for the day so she could walk her dog, get the kids breakfast and off to school, or get to work. Or maybe she was lucky enough to sleep in.

She ate a breakfast that conformed to her cravings, or health needs, or budget.

She got ready, choosing clothes best suited for her plans for that day.

Then Jane went to an office, or went in search of work, or went to school. Perhaps she took her child to school, which might be a school she chose for the child over other options.

When she returned home she pored over her stamp collection or tended to her garden, or attended to some DIY home repairs, or played with the dog in the yard. Perhaps that was followed by poker with some friends, having someone over to dinner, or playing a late-night basketball game at the local gym. Just before bed she might have meditated, in an effort to seek inner peace or control chronic pain.

Whatever Jane did yesterday, she chose to do it because she believed it was best for her and those in her life. She did these actions—and chose not to perform others—because she believed they would further her goals, give her pleasure, expand her income, help her children, or improve the world around her.

If someone forced her to make different choices, however, things might not have gone as well.

What if her state legislature passed a law that limited or even banned her choices? For example, what if the law mandated she wake up at six o’clock in the morning? Or required her to send her child to a certain school? Or forbade her from working her job unless she earned a degree she did not have and could not obtain anytime soon? Or forced her to sell her stamp collection? Or threatened her with punishment if she meditated? Or banned home gardens or residential poker games? Or required her to hire a governmentlicensed contractor for any home renovations? Or set a curfew?

Sound farfetched?

Many such restrictions are all too real.

Miami Shores, Florida, for example, prosecuted Hermine Ricketts and Tom Carroll for growing vegetables in their front yard. A city ordinance arbitrarily banned vegetable gardens in the front of one’s home, which happened to be the only part of their property where vegetables could grow.

The Utah Board of Cosmetology told Jestina Clayton she could not braid hair for a living because state law required her to have a cosmetology license. This was true even though the state’s cosmetology schools taught virtually no hair braiding and the state’s licensing exam contained no questions about hair braiding. (Nationwide, many other occupational licensing laws require entrepreneurs to acquire qualifications with little relationship to the occupation they wish to pursue.)

Oregon’s Society of Sisters, a nonprofit that ran a private school, saw the state legislature outright forbid their school and other private schools from operating, under a law that required children to attend public schools. And laws restricting diet, from restrictions on purchasing home-baked bread to bans on margarine, are unfortunately commonplace in modern times.

Furthermore, the experience of the recent COVID-19 pandemic has introduced everyone to the possibility of all kinds of restrictions, including on something as simple as leaving one’s home, that Americans had not experienced (or perhaps even imagined) in modern times. Whether those restrictions are justified at certain moments under certain conditions is another story, but whether they might be imposed is now plain to see.

What recourse would Jane have if a law restricted a liberty she exercised yesterday and wanted to exercise again today? Well, she could go to her state capital and ask the legislature—which just passed the law—to repeal it. She would be faced with all the forces of the legislative process, such as busy and indifferent legislators who are inclined to justify and defend their earlier actions, self-serving special interest groups who are more inclined to advance their own power and influence rather than their fellow citizens’ freedom, and savvy lobbyists who are paid by and do the work of the highest bidder rather than concern themselves with constitutional principles. Getting a law enacted without a grassroots army of like-minded citizens who can scare legislators into thinking they will not be re-elected if they do not vote your way, Jane would quickly find, is a tough endeavor indeed.

But Jane has also heard that in the United States there are certain things government cannot do, even if the legislature passes a law. Americans know that this is because of “the Constitution.” But what many do not realize is that “the Constitution” does not just mean the U.S. Constitution; it also means state constitutions. These are designed to restrict the power of state and local governments just like the U.S. Constitution can contain government power at every level. As Oprah might have said: “Every state gets a constitution!”

So Jane flips through both the U.S. Constitution and her own state’s constitution to see if they are of any help. Assume all the procedural requirements for legislation to be “a law” are in order: the bill restricting what Jane wants to do passed both houses of the legislature, started in the right house, was signed by the governor, etc. No help there. She then looks at what most Americans think about when they think of constitutions: the Bill of Rights. “Rights!” she says. “That law violates my rights! If my liberty is listed in the Bill of Rights then that law must be unconstitutional.”

Let us summarize some of the rights that we supposed Jane might have exercised yesterday:

e The right to arise at the hour you wish.

e The right to eat what you think is best for you.

e The right to wear the clothes of your choice.

e The right to educate your child in the school of your choice. e The right to earn a living.

e The right to collect stamps.

e The right to renovate your own home with your own hands. e The right to have a dog.

e The right to play poker.

e The right to gather with friends after hours.

e The right to meditate on your own terms, without permission.

Some of these look pretty important. Education and working are high on that list. Some of them seem almost dumb: Do many folks care about stamp collecting anymore? But all of them are things that people do and are important to at least some of them. If the government banned those activities the people that do them would not be happy. Not just unhappy; they might be out of a job, out of an education, or out of a home.

So Jane reads through the bills of rights in the federal and her own state’s constitutions to see what her rights are. Did her treasured liberty make the list?

Probably not. She sees all kinds of protections—speech, religion, searches, jury trial—in the federal Bill of Rights. She probably sees those and other ones in the state version: an “anti-monopoly” provision, perhaps, or protections on “freedom of conscience” that go beyond the First Amendment’s protection of religious liberty. But she likely will not see anything protecting her own specific right. No state enumerates the right to get up at the time of your choosing. Or be out of your home after hours. Or improve your home with your own hands. Or eat what you think is best for you. Or collect stamps. A few explicitly protect the right to pursue an occupation, but not many.' And none explicitly protect one of the most central rights on our list: the right to send your child to the school of your choice. Somehow these important liberties, including the one she is fighting for, got left off.

“Wait,” she replies. “I get that the rights listed in these bills of rights are important. We should protect freedom of speech, religion, and jury trials. But how about all the other liberties we need in life to pursue our happiness? What kind of a hatchet job did these constitutions’ framers do if the government cannot ban a book but can require you to rise at 6 a.m.?” (And, for that matter, make you perform calisthenics in the public square, as there is no right to not do that either.) “They should have spent a little extra time listing them all!”

Depressed, she then notices near the end of each bill of rights something else. The federal version reads like this, and the state version is very similar: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

“Wow!” she exclaims. “This recognizes there are ‘other’ rights, like the right I am concerned about. That seems to mean that even if a right was ‘left out,’ it still has equal value with those that actually are listed in the Constitution. So even though a bill of rights does not include a right to earn a living, or a right to educate your child, or a right to collect whatever stamps you wish, the right is still out there and cannot be ‘denied or disparaged’ just because it did not make the first cut.” Thus maybe she has a claim that her important liberty is being violated, after all. This last provision is kind of an “etcetera clause” for other rights. Right?

This book is the story of the answer to that question, or rather the answer to that question as it concerns state constitutions. Although many have argued (correctly, in the author’s view) that the Ninth Amendment “means what it says” and protects rights not included in the Constitution, the federal courts have not agreed. Not only have the courts not agreed, but many scholars have argued that the Ninth Amendment actually does not do what it seems to do.” Although Jane would think it protects her rights, these scholars argue that it does something else that will not help her with whatever right she is worried about.

But what few people realize is that two-thirds of all state constitutions have the same kind of provision. Christened “Baby Ninth Amendments” by University of California-Berkeley law professor John Yoo, they are exactly that.’ Although the term “Baby Ninth” is of recent vintage and has not been widely employed outside of a few scholarly legal articles, it is used in this book because just like the “baby FTC Acts” (state consumer protection laws in the mold of the Federal Trade Commission) the term encapsulates what these constitutional provisions are.* Even though most are not identical to the Ninth Amendment itself, they generally differ by just a word or two. For example, Nevada’s “Baby Ninth” states, “This enumeration of rights shall not be construed to impair or deny others retained by the people.”’ The clause trades “impair” for the federal version’s use of “disparage,” but otherwise it is basically the same. All of these Baby Ninths were adopted after the Ninth Amendment itself. All of them come near the end, or at the end, of their state’s bill of rights, like the Ninth. Each was plainly adopted with the Ninth Amendment itself in mind. The federal Constitution’s Ninth is the mother of them all, and she has had quite a few babies.

What is different about the babies is, as we shall learn later in this book, that the arguments made by critics of the “it means what it says” view of the Ninth Amendment do not work when set upon the Baby Ninths. The various arrows launched at an expansive reading of the Ninth Amendment—that it is really about enumerated powers, or states’ rights, or to ensure a balanced federal system, or only protects nonconstitutional rights—bounce off of Baby Ninths. The state constitutional versions truly mean that rights beyond those enumerated in a state constitution exist and should be protected at the same level as the enumerated ones. These nonlisted liberties are called “unenumerated” rights.

They are rights beyond those “enumerated” explicitly in the state’s constitution. But even though not enumerated in the relevant constitution they are constitutional rights.

So, if Jane is in a state with a Baby Ninth, can she now march down to the courthouse and defend her unenumerated freedom?

She should be able to. But in her case she probably cannot. In most situations, when people in similar circumstances have tried to protect their rights that “got left out” of the state’s bill of rights, their state’s courts have come up with excuses why the Baby Ninth does not protect them. Not always, but most of the time courts have not come to the aid of people in her situation.

This book is here, however, to say there is hope.

The courts have generally not agreed, but Jane’s fellow Americans who actually wrote our states’ constitutions did. On sixty-six occasions in U.S. history, Americans have drafted a constitution that became the fundamental law of their state that included a Baby Ninth. Over and over again, the drafters, and the ratifiers, of those constitutions have agreed that the “other” rights not enumerated in a constitution should not be “denied or disparaged” or “impaired or denied,” or what have you, just because those rights were not enumerated themselves. The right to go to work, choose one’s child’s school, tend one’s garden, collect stamps, or associate with friends after hours is protected even though the constitution’s framers did not list it explicitly.

But, wait, a critic may say: A constitution’s drafters put rights in a bill of rights for a reason. After all, adding another right is just a line or two more. This Baby Ninth thing seems like a technical glitch. That a right is not “in” a constitution has to count for something. Why did they not just list those other “important” rights?

Because then a constitution would be the size of that thing we once called a phone book, and maybe larger. We have discussed just a few liberties here, but even those would add quite a bit to the size of a typical bill of rights. Imagine everything else people do that we think the government should not be able to arbitrarily infringe upon. From the very small (shoelaces or Velcro?) to the very large (buy a house or rent?), the infinite number of choices in life cannot be boiled down to a list that we can agree on and then apply to all future situations, secure that we have protected everything worth protecting.

America’s Founding generation understood this well. Many opponents of adding a bill of rights to the original U.S. Constitution warned that if one were drafted and adopted it would imply (1) that those rights that were not included were not protected, and (2) that a comprehensive list including all rights was impractical anyway because of the limitless number of liberties that we would want to protect. To quote just one Founder, future Supreme Court justice James Iredell, speaking at the North Carolina ratifying convention: “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty

”6 In other words, enumerate a or thirty more rights not contained in it. right to wake up at 7 a.m. and you will leave out the right to wake up at 8 a.m. And even if you make rights a bit more general (“the right to get out of bed whenever you want”) you will still leave out other important aspects of human activity. As we will learn, some argue that James Madison came up with a work-around to this problem. The Ninth Amendment recognizes this inherent limitation in enumerating all rights, and bars that enumeration from “deny[ing] or disparag|ing] others.”

Now, whether you agree that that was Madison’s intention or not (the author does, but many smart people disagree), the Ninth Amendment’s language found its way into state constitutions over time. And not just once or twice, but over and over, and overagain. The further our nation developed, the more popular these Baby Ninths became. Madison’s (witting or unwitting) invention of protecting an infinite number of rights by saying we do not have to list them all has made its way into two-thirds of all state constitutions. And in all but a couple of instances, when states have adopted constitutions including Baby Ninths they have kept those Baby Ninths in later, newer constitutions.

Thus, Baby Ninth Amendments are not just out there in constitutional text. They are popular. Constitutional drafters recognize the inherent limitation of enumerating rights, and how that is a problem. Constitutional drafters recognize that governments come up with all kinds of harebrained schemes that might violate an activity no one previously thought worth enumerating as protected. And they have figured out a way to nevertheless protect us against those schemes.

Indeed, not only do constitutional drafters recognize this problem, but so do judges themselves. Almost no one actually believes that neither the U.S. Constitution or state constitutions protect any unenumerated rights. Time after time the U.S. Supreme Court, and state courts, have protected unenumerated rights of all kinds including (to make a short and incomplete list) rear one’s children, associate with others, pursue the occupation of one’s calling, engage in intimate activity, and go hunting.’ Sometimes the courts come out and say a right is protected, and sometimes a restriction on an activity that is not enumerated as a constitutional right is found to be unconstitutional because the government cannot justify its restriction. Either way, the result is a protection of a right not found in a constitution.

But courts have rarely “found” these rights in Baby Ninths, let alone in the Ninth Amendment itself. Instead, they generally have “found” them in due process clauses or in the “penumbras” and “emanations” of enumerated rights such as the First Amendment’s Free Speech Clause. They have often done this while a lonely Baby Ninth Amendment sits elsewhere in the state’s bill of rights, waiting for someone to come along and interpret it. Thus a central message of this book is that instead of exercising the gymnastics sometimes necessary to protect unenumerated rights with parts of constitutions that seem ill-disposed to protect them, judges can simply apply the words of a state’s Baby Ninth, which are welldisposed to protect unenumerated rights.

Therefore, if Jane is lucky enough to live in a state with a Baby Ninth Amendment, yet unlucky enough to face a law denying an unenumerated liberty, she should be able to use its language to protect her. This would protect her choice to arise at the hour she wishes, educate her children how she sees best, pursue her occupation, associate with her friends after hours, and collect stamps in the manner she is accustomed to.

But the fact remains that the courts have, by and large, not allowed this to happen. Why have courts failed to protect our rights with Baby Ninths? And why the disconnect between what courts do and what seems to have been the straightforward purpose of the Baby Ninths’ drafters?

As in other areas of constitutional law, it appears that courts have ignored Baby Ninths or watered them down to triviality because they just do not like them. Judges get what a serious implementation of a Baby Ninth would do—protect a lot of liberties not included in the state’s constitution—and balk at making that a reality.

This is not their choice to make. People often decry judges seizing power: “Government by Judiciary” in one professor’s phrase.* What you hear less about is judges abdicating their responsibility to apply constitutional commands. In ignoring Baby Ninth Amendments, judges have abdicated a responsibility that the people have placed in their hands. An individual judge may love Baby Ninths, or may hate them and think them foolhardy. But that does not mean she can ignore them any more than she can ignore any other provision of governing law.

The following pages tell the story of how the framers of dozens of constitutions took Madison’s words from the Ninth Amendment and put them into the foundational law of most of our states. Throughout almost every period of U.S. history, in every geographic region, and increasing in popularity as judicial fads and movements ebbed and flowed, Americans learned to embrace Baby Ninths and accept them as a standard way to protect their liberties. Despite this, judges generally have given them next to no recognition. There are exceptions, however, and seeing those exceptions will illustrate how Baby Ninths can protect our liberties when they are actually interpreted and followed.

This story is mostly historical, partly theoretical, but at bottom it is practical. It is a story of how Americans grew into not just unenumerated rights, but the realization that states and the people have unenumerated powers and that unenumerated rights are a way to protect against those powers. It is a story of a consensus that defies left and right, economic and personal, North and South, Black and white. It is a story of Americans recognizing the dangers that governments pose and expansively shackling those governments into the future. Consider that although most Americans say that what the Constitution and the Bill of Rights do is protect our rights, the text of those documents protect our rights by saying what government cannot do, through familiar turns of phrase such as “Congress shall not.” In the Ninth Amendment itself it states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, in protecting our rights we often say what the government cannot do to us, not what we ourselves can do. Americans repeatedly agree to give the government some power, but not all power, and we will take care of the rest on our own, thank you very much.

In chapter 1 we will begin with the invention of state constitutions during the American Revolution, and then move on a few years to the framing of the Ninth Amendment itself. We will also take a look at what the Ninth Amendment might have meant at the time. To do this we will inquire into the Ninth’s “original meaning,” a term we will spend a little bit of time defining. We will look at the various approaches on what that meaning is and how various scholars disagree. Then we will look at the early years of the Republic and how constitutional drafters understood the relation of the states to the new federal government. This will include the birth of older siblings, of sorts, of the Baby Ninths: the Baby Tenths.