Baby Ninth Amendments Part IV: All the Rights but Not ALL the Rights
You might call this post “The Big Mac.” I’m getting to the meat of the issue: What rights do Baby Ninths protect, and how do these state constitutional provisions protect those rights?
You can see the previous three in this series here, here, and here, all of which summarize my new book from the University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (available for free here).
First let’s take a 30,000 foot view of what we’re talking about: a specific type of provision with specific words with variants in thirty-three state constitutions. We are not talking about “rights” generally or what we would put in a constitution ourselves. You could imagine a state constitution that says something like everyone has a right to “a minimum annual income.” Or “adequate housing.” Or even something wide-open like “what one needs to live a fulfilling life.” For various reasons I think those provisions would be bad. But if they were in a constitution, you would have to admit they were “constitutional rights.” Indeed, some fellow libertarians may not like this, but many state constitutions already make a state provided primary education a right. What the text says matters.
With that level-setting, let’s look at what Baby Ninths protect. For guidance, we’re first going to see what various scholars have said about the Ninth Amendment itself. Since the text is always very similar between the Ninth and Baby Ninths, this will hopefully give us a good start.
VC member Randy Barnett once helpfully organized five various originalist “models” about what the Ninth Amendment meant when it was adopted. I take those five approaches in my book, plus a more recent one—of Professor Michael McConnell—and apply them to Baby Ninths. I don’t take sides in the book on their merits vis-à -vis the Ninth, but I argue that none of them make sense when interpreting a Baby Ninth other than the “individual rights model.”
Some of them—such as the “federalism model” and the “state law rights model”—don’t for obvious reasons. For one thing there’s no “federalism” to worry about. The others models don’t work either, including the “collective rights model.” Although it has received a small bit of support in the caselaw, it doesn’t work because the “collective rights” of the people of a state are elsewhere provided for in a state constitution via the legislature and via the co
Article from Reason.com
