The Political Science Shelf

Baby Ninth Amendments
Anthony B. Sanders
University of Michigan Press
839 Greene Street, Ann Arbor, MI 48104-3209
www.press.umich.edu
9780472076154, $49.95, HC, 214pp

https://www.amazon.com/Baby-Ninth-Amendments-Americans-Unenumerated/dp/0472= 076159

Synopsis: Listing every right that a constitution should protect is difficu= lt. American constitution drafters often list a few famous rights such as f= reedom of speech, protection against unreasonable searches and seizures, an=
d free exercise of religion, plus a handful of others. But there are an inf= inite number of rights a constitution could protect. However many rights ar=
e put in a constitution, others are going to be left out.

So what is a constitution drafter to do? Luckily, early in American history=
a few drafters found an easier way: an "etcetera clause". It states that t= here are other rights beyond those specifically listed.

The most famous etcetera clause is the Ninth Amendment to the U.S. Constitu= tion, which states: "The enumeration in the Constitution, of certain rights=
, shall not be construed to deny or disparage others retained by the people= .."

Yet scholars are divided on whether the Ninth Amendment itself actually doe=
s protect unenumerated rights, and the Supreme Court has almost entirely ig= nored it. Regardless of what the Ninth Amendment means, however, things are=
much clearer when it comes to state constitutions. Two-thirds of state con= stitutions have equivalent provisions, or "Baby Ninth Amendments," worded s= imilarly to the Ninth Amendment.

With the publication of "Baby Ninth Amendments: How Americans Embraced Unen= umerated Rights and Why It Matters", Anthony B. Sanders tells the story of = how the "Baby Ninths" came to be, what they mean, and what they tell us abo=
ut unenumerated rights more generally.

Unlike the controversy surrounding the Ninth Amendment, the meaning of the = Baby Ninths is straightforward: they protect individual rights that are not=
otherwise enumerated. They are an "etcetera, etcetera" at the end of a bil=
l of rights. Sanders eloquently argues that state judges should do their du=
ty and live up to their own constitutions to protect the rights "retained b=
y the people" that these "etcetera clauses" are designed to guarantee. The = fact that Americans have adopted these provisions so many times in so many = states demonstrates that unenumerated rights are not only protected by stat=
e constitutions, but that they are popular.

Unenumerated rights are not a weird exception to American constitutional la=
w. They are at the center of it. We should start treating constitutions acc= ordingly.

Critique: Skillfully addressing an otherwise obscure or neglected part of t=
he American Constitution, "Baby Ninth Amendments: How Americans Embraced Un= enumerated Rights and Why It Matters" is also features a twelve page Append=
ix (Baby Ninth Amendments in State Constitutions), thirty pages of Notes, a=
nd an eight page Index. Exceptionally well organized and presented, "Baby N= inth Amendments" is an invaluable, timely, and unreservedly recommended add= ition to personal, professional, community, college, and university library=
Political Science collections and supplemental Constitutional Law curricul=
um studies lists. It should be noted for law students, academia, members of=
the Judiciary, political activists, and non-specialist general readers wit=
h an interest in the subject that "Baby Ninth Amendments" is also available=
in a paperback edition (9780472056156, $24.95).

Editorial Note: Anthony B. Sanders (https://ij.org/staff/asanders) is the D= irector of the Center for Judicial Engagement at the Institute for Justice.=
He has written articles on state constitutional law, unenumerated rights, = judicial review, and other subjects for law journals across the country. An= thony has litigated in various state courts in cases involving state consti= tutional protections, as well as in federal courts on matters such as econo= mic liberty, free speech, administrative law, and fines and fees abuse.

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