Baby Ninth Amendments Part I: Infinite Rights, Finite Ink
Thank you to Eugene and the rest of the Volokh Conspiracy for allowing me to post about my new book published by University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters. I’ve been a VC reader since my second year of law school (which was also the VC’s second year!) and it’s an honor to have this opportunity.
My book tells the largely unknown story of how Americans have solved a problem: How do we enumerate rights when we have an infinite number of them?
I start with a thought experiment involving an average American named Jane. Jane goes about her day making choices for herself and her family on her own terms. Some of these choices are pretty mundane: She chooses when to get up, what to eat, and what hobbies to pursue (gardening and stamp collecting in her case). Some are pretty important: She goes to work at a job that she chose over other options, sends her child to a school she chose, and repairs part of her house with her own labor.
Think about your own day. You make all kinds of similar choices that you think are best for you and those close to you.
But then Jane’s state legislature passes a law that restricts or even forbids one of those choices. Jane is outraged. She can’t believe those know-nothing politicians have done this! Two examples I give, that happened in real life, are prohibiting private schools (Oregon) and banning the growing of vegetables in front yards (Miami Shores, Florida).
Jane isn’t a lawyer but she knows that in America we have our constitutional rights and that this law has to violate one of them. How could it not? She also is savvy enough to know that, in addition to the U.S. Constitution, every state has its own constitution. So she sits down with both the federal version and her state’s constitution and looks at the bill of rights in each. (All 50 state constitutions have their own bill or declaration of rights. To learn more in general check out Judge Jeffrey Sutton’s excellent books.)
In the federal bill of rights, Jane sees what we’ve all heard about: Speech, the press, religious freedom, search and seizure protections, and all the rest. But notice that of the examples of choices I gave above, ther
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