“The story of Baby Ninths since 1860 is every bit as interesting as the story of their
birth decades prior. It is the story of Americans reaffirming, over-and-over again, their comfort with the concept of unenumerated rights. This runs counter to the story of unenumerated rights being a product of the Lochner court, errantly foisted on the public by a run-away judiciary, vanquished by the New Deal, and then brought back in a different, truncated form, by Griswold and Roe.10
No, unenumerated rights are something that American constitutional drafters have been comfortable with across our history. While federal judges bickered about whether the Fourteenth Amendment protects unenumerated rights,11 state constitutional drafters repeatedly protected such rights in black-and-white language. So much so, that they eventually winded up in two-thirds of our state constitutions.
In short, unenumerated rights are as American as apple pie. The drafters of our constitutions wanted them protected. The original meaning of Baby Ninths is that they are protected.
10 For a brief version of this standard, and repeatedly told, story see Justice Steven’s description of the Lochner court and the subsequent halting protection of “fundamental” rights. McDonald v. City of Chicago, 561 U.S. 742, 878 (2010) (Stevens, J., dissenting).
11 To fully enumerate this bickering would require a very long footnote, indeed. To include just a handful of examples, see Glucksberg v. Washington, 521 U.S. 702, 720-21 (1997) (some unenumerated rights protected by Due Process Clause of Fourteenth Amendment if deeply rooted in the nation’s history); United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (sharply limiting protection of unenumerated rights in case involving the Fifth Amendment’s Due Process Clause); Lochner v. New York, 198 U.S. 45, 58 (1905) (right to contract protected by due process); Slaughterhouse Cases, 83 U.S. 36, 80-81 (1873) (holding Privileges or Immunities Clause of Fourteenth Amendment does not protect the right to earn a living.
“The Birth, and Growth, of Baby Ninths.
The Ninth Amendment itself came to be in 1789 in the crafting of what we now know as the Bill of Rights.13 But it was not for 30 years that a similar provision was included in a state constitution.
14 State constitutions predated the U.S. Constitution itself, and new state constitutions frequently were adopted in the Republic’s early years either through a new state being admitted to the Union, or a state concluding its existing constitution was inadequate and convening a constitutional convention to draft a new one.
15 Several new state constitutions were adopted in the 1790s, 1800s, and early 1810s, but none contained anything modeled after the Ninth Amendment itself.16 Some, however, did include provisions that appear to have been modeled after the Tenth Amendment, which I have christened “Baby Tenths.”17 These Baby Tenths were later often paired with Baby Ninths, and still reside in a number of state constitutions today.18