Anthony B. Sanders, Institute for Justice, is publishing Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War in the Mercer Law Review. Here is the abstract.
Although there is controversy on the original meaning of the Ninth Amendment, there should be no controversy on the original meaning of Ninth Amendment analogs in state constitutions, otherwise known as the “Baby Ninths.” This Article examines the history of the states’ adoption of Baby Ninths before the Civil War. It includes an analysis of the parallel history of what I call “Baby Tenths,” state constitutional provisions exempting state bills of rights out of the power of government. From these, and other, sources I demonstrate that Baby Ninths only make sense as judicially enforceable provisions that protect unenumerated individual rights.Download the article from SSRN at the link.