August 2023 MBR The Political Science Shelf

The Political Science Shelf

Baby Ninth Amendments
Anthony B. Sanders
University of Michigan Press
839 Greene Street, Ann Arbor, MI 48104-3209
www.press.umich.edu
9780472076154, $49.95, HC, 214pp

https://www.amazon.com/Baby-Ninth-Amendments-Americans-Unenumerated/dp/0472076159

Synopsis: Listing every right that a constitution should protect is difficult. American constitution drafters often list a few famous rights such as freedom of speech, protection against unreasonable searches and seizures, and free exercise of religion, plus a handful of others. But there are an infinite number of rights a constitution could protect. However many rights are put in a constitution, others are going to be left out.

So what is a constitution drafter to do? Luckily, early in American history a few drafters found an easier way: an "etcetera clause". It states that there are other rights beyond those specifically listed.

The most famous etcetera clause is the Ninth Amendment to the U.S. Constitution, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Yet scholars are divided on whether the Ninth Amendment itself actually does protect unenumerated rights, and the Supreme Court has almost entirely ignored it. Regardless of what the Ninth Amendment means, however, things are much clearer when it comes to state constitutions. Two-thirds of state constitutions have equivalent provisions, or "Baby Ninth Amendments," worded similarly to the Ninth Amendment.

With the publication of "Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters", Anthony B. Sanders tells the story of how the "Baby Ninths" came to be, what they mean, and what they tell us about unenumerated rights more generally.

Unlike the controversy surrounding the Ninth Amendment, the meaning of the Baby Ninths is straightforward: they protect individual rights that are not otherwise enumerated. They are an "etcetera, etcetera" at the end of a bill of rights. Sanders eloquently argues that state judges should do their duty and live up to their own constitutions to protect the rights "retained by the people" that these "etcetera clauses" are designed to guarantee. The fact that Americans have adopted these provisions so many times in so many states demonstrates that unenumerated rights are not only protected by state constitutions, but that they are popular.

Unenumerated rights are not a weird exception to American constitutional law. They are at the center of it. We should start treating constitutions accordingly.

Critique: Skillfully addressing an otherwise obscure or neglected part of the American Constitution, "Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters" is also features a twelve page Appendix (Baby Ninth Amendments in State Constitutions), thirty pages of Notes, and an eight page Index. Exceptionally well organized and presented, "Baby Ninth Amendments" is an invaluable, timely, and unreservedly recommended addition to personal, professional, community, college, and university library Political Science collections and supplemental Constitutional Law curriculum studies lists. It should be noted for law students, academia, members of the Judiciary, political activists, and non-specialist general readers with an interest in the subject that "Baby Ninth Amendments" is also available in a paperback edition (9780472056156, $24.95).

Editorial Note: Anthony B. Sanders (https://ij.org/staff/asanders) is the Director of the Center for Judicial Engagement at the Institute for Justice. He has written articles on state constitutional law, unenumerated rights, judicial review, and other subjects for law journals across the country. Anthony has litigated in various state courts in cases involving state constitutional protections, as well as in federal courts on matters such as economic liberty, free speech, administrative law, and fines and fees abuse.

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