Baby Ninth Amendments Part II: The Invention of Unenumerated Rights
Yesterday I started these Baby Ninths posts (summarizing my new book, from University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters–available for free here) with a thought experiment about why we might want an “etcetera clause.” Today we’re going to take a quick overview of the history of that kind of clause in state constitutions. It was a slow, but steady, process where various groups of Americans repeatedly solved the same problem our friend Jane encountered: How do we protect the infinite possible exercises of our liberty with a finite constitution?
In the beginning there were no unenumerated constitutional rights. And that’s because there were no constitutional rights, period. Excuse me, I should have said full stop. Because I’m speaking of the British Constitution. As discussed on a recent podcast I hosted, the British Constitution is a thing that exists, but it’s not written down in one place. And in some respects it’s simply the sovereignty of the “King in Parliament.” At times in their history the British have speculated there might be “rights” that even Parliament cannot abridge (most famously some musings from Lord Coke), but that had essentially died out long before the American Revolution. In their revolutionary fever, however, Americans mused anew, threw off the sovereignty of Parliament, and adopted “the people” as sovereign. And this “people” acted through adopting written constitutions that were a “higher law” than the legislature. And a neat thing about a written constitution is you can put “rights” in it that the legislature cannot abridge.
The first full-fledged bill of rights was Virginia’s Declaration of Rights, which George Mason drafted in the spring of 1776. It had many enumerated rights we’d be familiar with, but also some pretty broad language, such as “the enjoyment of life and liberty” and “pursuing and obtaining happiness and safety.” The provision was later copied in numerous other state constitutions.
Were they “etcetera clauses”? If not they’re pretty close. Steve Calabresi calls them “Lockean Natural Rights Guarantees,” which seems a pretty good description to me. (For their story check out an article he co-authored.)
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