Sanders on the Mystery of the Missing Babies @IJSanders

Anthony B. Sanders, Institute for Justice, has published Mystery of the Missing Babies. Here is the abstract.

This essay begins with my recently published book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters and then digs into a nuance I did not pursue there. The book demonstrates that Baby Ninth Amendments—state constitutional versions of the Ninth Amendment to the U.S. Constitution—grew in popularity across American history, especially after the Civil War. This was especially true in new states, with 13 of the 15 states to enter the Union since the war adopting “Baby Ninths.” But what about those other two states, namely North and South Dakota? Why did they not adopt Baby Ninths? At the beginning of the research I suspected it might have something to do with the judicial minimalism of James Bradley Thayer, the influential Harvard Law professor who had a “legendary” role in drafting the North Dakota Constitution. But what I find is nothing so conspiratorial and, instead, much more interesting. Thayer was apparently noncommittal or perhaps even supportive of including a Baby Ninth in a state constitution. Indeed, a Baby Ninth could have ended up in the constitutions of either state. Why one did not was due to a combination of the caprice of which existing states the drafters modeled their draft constitutions on, the happenstance of the lack of a “champion” for Ninth Amendment language among the delegates, and the defects of a Keystone Cops-seeming scheme involving Thayer and the Northern Pacific Railroad. The lesson to draw is not that the framers of the Dakota constitutions did not welcome unenumerated rights. It is a larger one: To remember the outsized role of founding effects, personality, and the vicissitudes of fortune on constitutional formation.

Download the article from SSRN at the link.