Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

Join us online for the launch of an inspiring new book from Anthony Sanders of the Institute for Justice, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (University of Michigan Press, 2023). The book tells the unheralded story of how Americans carefully sought to protect liberty from overweening government by including in most state constitutions specific provisions (so‐​called Baby Ninths) that expressly protect unenumerated rights.

Sanders explains why it is impossible to itemize every right a constitution should protect and shows that however many rights are specifically enumerated, other important rights will inevitably go unmentioned. So what is a constitutional drafter to do? Sanders argues that early in American history, a solution was advanced by drafters of state constitutions in the form of what he calls an “etcetera clause” that contains language borrowed directly from the Ninth Amendment to the U.S. Constitution. As a result, two‐​thirds of states today contain these “Baby Ninth Amendments” that even skeptics of unenumerated rights must not only acknowledge but also give meaningful substance to. This has important implications for state courts, which have thus far largely ignored these important provisions, and for the larger question of whether it is ever appropriate—or indeed even mandatory—for judges to protect unenumerated rights. The short answers, as Sanders makes clear, are yes and yes.

Clark Neily will talk with Sanders about his new book. Join us online on May 10 at noon.

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