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.

Sanders on Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War

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.

An Originalist Interpretation of the Ninth Amendment

Louis Michael Seidman, Georgetown University Law Center, has published "Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism," as Georgetown Public Law Research Paper No. 10-11. Here is the abstract.

The Ninth Amendment - our resident anarchic and sarcastic "constitutional jester" - mocks the effort of scholars and judges alike to tame and normalize constitutional law. It is not as if the stern disciplinarians haven't tried. We now have two generations worth of painstaking, erudite, and occasionally brilliant scholarship that attempts to rein it in. Yet the amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.

This essay has two parts. In Part I, I present a new and, I hope, persuasive, originalist account of the Ninth Amendment. My claim is that the Amendment deliberately leaves unsettled the status of unenumerated rights. Because of the Ninth Amendment, the Constitution does not "deny" or "disparage" these rights, but neither does it embrace or imply them. The amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text.

Although I use originalist methodology in Part I, I do not want to be understood as embracing originalism. Instead, this Part is an exercise in internal critique. As Part II explains, the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive.

Download the paper from SSRN at the link.