Baby Ninth Amendments Part III: “An Unwritten Constitution”
In this third installment 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), I’m going to briefly summarize what two particularly important sets of people have said about Baby Ninths: Delegates to constitutional conventions and state judges. This will just be a tiny sample of what’s in the book, but hopefully it will give you a peak at the bigger picture.
State constitutional conventions are a super fun slice of American history. I don’t want to over-valorize them, and there’s plenty of examples of shameful moments in the roughly 200 times a state has adopted a new constitution. But overall they’re a hopeful story of state residents coming together to write something enduring. All kinds of ideas are debated that don’t normally come up in run-of-the-mill legislative assemblies. Often the delegates aren’t standard politicians—sometimes they’re just farmers or tradespeople—so you get outside-the-box thinking. And given the time scale and generality of the product they’re drafting, the normal “special interest” machinations aren’t as clear.
There aren’t that many accounts of Baby Ninths being debated on convention floors. Partly this is because many conventions were cheap and didn’t hire court reporters, and partly it’s because often Baby Ninths (along with many other provisions) were adopted without debate. But of comments that survive there’s a surprising message that today’s “positivist” age might be surprised by. And that’s that some delegates objected to Baby Ninths not because they protected unenumerated rights, but because they weren’t needed to protect unenumerated rights. That is, unenumerated rights were protected from government even without language protecting them!
For example, a delegate, Mr. Parke, introduced a Baby Ninth to the Maryland convention of 1850-51. He said that “it was a mere assertion that there were rights not enumerated in the declaration of rights, and that they were retained by the people.” When asked what those rights were, he said, “They were very numerous—so much so as
Article from Reason.com
