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

• Citation: Vol. 68 No. 2
• Publication year: 2017

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

Anthony B. Sanders

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

by Anthony B. Sanders^*

Introduction

Perhaps the greatest questions of modern constitutional law are "Does the Constitution protect unenumerated rights, and, if so, what are those rights?" The United States Supreme Court has repeatedly, yet haphazardly and often reluctantly, answered "yes" to the first question, and essentially "it depends" to the second.¹ The Court has proceeded with basically the same approach concerning the Constitution's unenumerated protections against both the federal government and the states.²

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Criticism of the Court has been relentless and from all sides. Many defenders of the concept of unenumerated rights have criticized the Court for relying on the doctrine of "substantive due process" in protecting unenumerated rights instead of other, more appropriate, provisions in the Constitution, most notably the Ninth Amendment (when concerning the federal government) and the Fourteenth Amendment's Privileges or Immunities Clause (when concerning the states).³ These critics also often disagree among themselves as to what the actual rights are that these provisions protect.⁴ Others—including judges—have heatedly argued that the Court should not recognize unenumerated rights at all⁵ (although literal proponents of no unenumerated rights are harder to find on close inspection).⁶ Skeptics of unenumerated rights not only pile onto the criticism of substantive due process, but also argue that provisions such as the Ninth Amendment and the Privileges or Immunities Clause do not protect them either, even going as far as labeling them "inkblots."⁷

This multi-fronted fight is the only game in town for protections against the federal government. For the most part, those looking for protections of unenumerated rights that apply to the United States itself only have the Fifth Amendment's Due Process Clause and the Ninth Amendment to turn to. But for those seeking redress against their state or local governments—where most governing still happens—there is a whole separate layer of protection: state constitutions.

Every state gets a constitution.⁸ Additionally, every state has a constitution with language that can protect rights in addition to those explicitly

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protected in the state constitution's bill of rights. This includes due process clauses, which most states' constitutions contain.⁹ But if state courts protect unenumerated rights with due process clauses—as, in fact, many have—the same arguments about the appropriateness and legitimacy of substantive due process arise.¹⁰ In short, if you are trying to avoid the jurisprudential and academic controversy at the federal level, it will follow you into state court if you examine state due process clauses for unenumerated rights.¹¹

But you can avoid this controversy if you look elsewhere in state constitutions. There are two most obvious examples: "Baby Ninth Amendments"¹² and "Lockean Natural Rights Guarantees."¹³ The former is the subject of this Article. The latter is the subject of a recent, comprehensive article by Professor Steven Calabresi and Sofia Vickery discussed below.¹⁴ Whether either of these types of provisions protect unenumerated rights and which rights they protect may be contentious questions—and

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they are—but they are different questions than those surrounding the U.S. Constitution, involving different histories and different constitutional language. They are consequential questions, as forty-one states have one of these clauses in their constitutions.¹⁵ Baby Ninth Amendments alone are present in thirty-three.¹⁶

If these, or other "non-due process clauses," protect unenumerated rights in state constitutions, Americans may have many more protections against their state and local governments than they—or even state judges—realize. For those who want state constitutions to protect unenumerated rights, then avoiding the seemingly intractable debate over federal unenumerated rights doctrine would be extremely helpful.

This Article makes a small step toward demonstrating that at least most state constitutions protect unenumerated rights by focusing on Baby Ninth Amendments. Calabresi and Vickery recently demonstrated some of the unique and rich jurisprudence of Lockean Natural Rights Guarantees in their invaluable and outstanding article.¹⁷ This Article has a parallel focus, but with a slightly different approach. Similar to Calabresi and Vickery's article, the present one only discusses the period

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before the Civil War.¹⁸ However, the focus here is not on the jurisprudence of that period, although that is discussed, but on the actual adoption of Baby Ninths in state constitutions through constitutional conventions. Additionally, this Article differs from Calabresi and Vickery's in that its ultimate goal is aimed at the "original meaning"¹⁹ of state constitutions themselves, not the Fourteenth Amendment.

Although this Article primarily concerns Baby Ninths, I demonstrate that we cannot discuss their history without also examining the history of another common provision, one even less explored and understood than Baby Ninths. I have taken the liberty of calling these provisions "Baby Tenths." After learning about Baby Tenths, the purpose of Baby Ninths becomes clearer, further demonstrating that Baby Ninths protect unenumerated rights. Even more than that, the antebellum history of Baby Tenths and Baby Ninths demonstrates that all rights, enumerated and unenumerated, are meant to be read broadly, not as narrow exceptions to state power.

What this Article does not attempt to do is provide the rich history of Baby Ninths—which includes their continuing adoption across the country as well as their interpretation—after 1860. Further, although I argue that Baby Ninths protect unenumerated individual rights, I do not argue in depth which rights Baby Ninths, or any specific Baby Ninth, protect, though I give some parting thoughts on that subject.

This Article begins in Part I with a review of the well-known story of the drafting and adoption of the Ninth and Tenth Amendments to the U.S. Constitution. This includes an outline of the various theories scholars have presented on the original meaning of the Ninth Amendment. In Part II, we move to how the Baby Ninths came to be, starting with the Baby Tenths and then leading to the invention of the Baby Ninths in Alabama and Maine in 1819. Part III then provides an overview of how states slowly, but surely, began adopting Baby Ninths in the following decades, gathering steam in the run-up to the Civil War. It first discusses

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which states adopted (or failed to adopt) Baby Ninths and when, and then focuses on state constitutional conventions where the delegates discussed the meaning and desirability of both Baby Ninths and Tenths. Part III concludes with an overview of the (thin) jurisprudence of Baby Ninths, such as it was, before the Civil War.

With that historical understanding of Baby Ninths and Tenths, Part IV moves to the question of what Baby Ninths mean (at least for those states that adopted them before 1860). Given their textual similarity with the Ninth Amendment itself, I subject them to the various schools of thought discussed in Part I. I conclude that due to their presence in state constitutions, as opposed to the U.S. Constitution, what was said in state constitutional conventions and in jurisprudence, and their close relationship with Baby Tenths, the only Ninth Amendment interpretation that makes any sense when applied to Baby Ninths is that they protect unenumerated individual rights. While doing so, I address the objections that others have made to this interpretation of Baby Ninths.

I make this conclusion without taking sides on how to interpret the Ninth Amendment itself. Whatever the right way to interpret the Ninth Amendment may be, the history discussed in this Article demonstrates that the original meaning of Baby Ninths—at least those adopted before the Civil War—was to protect judicially enforceable unenumerated individual rights.

I do not claim that this is the first work to seriously examine the Baby Ninths. Many others have probed their implications before.²⁰ But, for the period involved, this is the most in-depth treatment of the history of Baby Ninths (and Baby Tenths) given to date.

I. The Birth of the Ninth Amendment and What It Means

Although unenumerated rights clauses predate the Ninth Amendment,²¹ the Baby Ninths—as their name heavily suggests—owe their existence to the Ninth Amendment itself. The Ninth Amendment was a very specific provision without a predecessor in a state constitution. Its own history—along with that of its sibling the Tenth Amendment—

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therefore deserves a brief retelling, as familiar as it may be to some readers. Following the retelling, this Article leads into an overview of how modern jurists and scholars think the Ninth Amendment should be interpreted.

A. How the Ninth and Tenth Amendments Were Framed

In 1787, the men who would become the framers of the U.S. Constitution met in Philadelphia to form a more perfect union. As the summer wore on, their tasks were primarily devoted to what the powers of the new federal government would be and how those powers would be divided among its branches. They gave little consideration to issues of individual rights²² — something very different from what happened when many of the same framers had drafted their state constitutions over the previous eleven years (the first state constitutions only going back to 1776, shortly before independence).²³ A couple of times during the convention, a call was made to add a bill of rights to the emerging constitution, but these motions failed amid the attendees' various...