I am Anthony Sanders, an attorney with the Institute for Justice, and I just released my book ‘Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters’ available for free download

Okay. I'll start. Can you give some examples of specific unenumerated rights? Not American so it's not in my knowledge base.

Great, to-the-point, question. “Unenumerated rights” could be anything in the abstract. They’re just rights that are not listed in a constitution. But the provisions I write about, Baby Ninth Amendments, are—I argue—referring to natural rights that we have as people that we “retain” after we come together in a society that are not otherwise listed in that constitution. Examples I give in the book are a right to earn a living, a right to choose a school for your child, a right to garden, a right to choose what you want to eat, and a right to collect stamps. These are just a few of the literally infinite number of ways you can exercise your liberty. Now, this doesn’t mean the government cannot regulate these rights at all. It just means they’re protected and the government needs a good reason to regulate them just like it does of enumerated rights.

Excellent... Now I'm going to get lost in a mine of more information on this topic. Might even get your book! See you in a few hours!

Enjoy!

I don't want to disrupt with a parent comment because I don't have a specific question at the moment, just wanted to say I really enjoy Short Circuit and I thank you for your hard work. Keep it up!

Aw, thanks! So glad you like Short Circuit. We love writing it and recording the podcast too.

What is the consensus in the judiciary on what constitutes a "good reason" for regulating rights? And what are some viewpoints where disagreements arise on what is a "good reason" or not?

Unfortunately most of the time judges think a "good reason" is any conceivable reason (even if it's not an actual reason the government has) on any conceivable facts (even if not facts that actually exist). I'd like at a minimum have judges that look at actual reasons and actual facts.

Notably absent from your list of examples is the right of a woman to choose to end her pregnancy. Do you regard that as an unenumerated right? Since you work for a libertarian organization, I would think you'd believe that the government shouldn't have the power to meddle in personal reproductive choices.

The right to bodily autonomy is definitely an unenumerated right retained by the people. Whether that right is properly restricted when it comes to abortion is a question that libertarians differ on. I have a few thoughts about the issue here https://www.discoursemagazine.com/politics/2022/12/08/wheres-the-legal-protection-for-economic-liberty/

When I read what you wrote, being a foreigner, I can only read unenumerated rights as "rights people should have but here we don't" specially because I see you guys losing rights in different places in the USA all the time. You guys need a constitution that put to paper your rights as human beings

Unenumerated rights are rights that are not listed in a constitution but still protected. The problem is you can never list every right you want protected because there literally are an infinite number of them. Every specific exercise of your liberty could be considered a right. So Americans have invented a way to protect them, an unenumerated rights clause. So we've done what you suggest in our constitutions.

How are judges today supposed to differentiate between protecting unenumerated rights and conducting judicial activism?

There's a happy medium between "judicial activism" (judges just making stuff up) and judicial restraint, or judicial abdication, which is judges deferring to the government and blinding their eyes to the law. Your question could be answered various ways depending on the part of a constitution we're talking about. But for Baby Ninth Amendments judges can't just "make stuff/rights up." They're written so that judges enforce rights "retained by the people." And that means natural rights that we retain even after we come together to form a government. The kind of balancing judges necessarily do with enumerated rights between legitimate government purposes and individual rights should be done for unenumerated ones. Facts need to matter, as does the government's purpose. Is it actually protecting public health and safety, or just rewarding special interests?

I saw a question that somehow has gone missing, so I'll answer it here. It's how I feel about the name "Baby Ninth Amendments." And I love it! I didn't make it up, a couple law professors did. But I think it captures what they are. The Ninth Amendment, drafted in 1789, was the invention of that language. No document had used it before. Then, 30 years later, it started appearing in state constitutions. Thus mother to babies.

Hello, and thanks for the AMA.

Bit of a niche question: Did the Northwest Ordinance of 1787 contribute to the spread of state-level versions of the 9th Amendment in any way?

A broader pair of questions: What's the most "settled" unenumerated right that most federal-level courts would agree that residents of the US have, and what unenumerated right or rights do you think lie at the 'bleeding edge' of 9th Amendment law?

Love the Northwest Ordinance question! But, no, it did not. The Ninth Amendment was first drafted in 1789 and there wasn’t a state-level equivalent until 1819, in Alabama and Maine. On federal courts and unenumerated rights, the most “settled” would be the right to travel and the right to raise a child. Not much more than that, unfortunately. But that’s a U.S. Constitution question. With state constitutions it gets more interesting (or so I hope you agree if you read my book :) ).

Anthony, do you envision there being any U.S. constitution amendments in the next 50 years? 100 years? I can't imagine two-thirds of our country agreeing on anything and it feels like the concept of the constitution being a living document is long gone.

On constitutional amendments. I can only offer speculation, but history is notoriously unpredictable and I wouldn’t be surprised at all if there are constitutional amendments in the next 50 or 100 years.

What is the most unusual/interesting unenumerated right you've ever come across? And I don't mean just a right that somebody has said might exist -- I mean a right that has been recognized in a judicial decision. Any fun ones?

And I guess relatedly, do you have a favorite unenumerated right?

There are a few I talk about that I blogged about recently, in a series of 9 posts on Baby Ninth cases, at https://ij.org/cje-post/. One of my favorites is State v. Williams, a 1908 North Carolina case that recognized a right to bring a gallon-and-a-half of whisky into a dry county for personal use. Pretty specific! A gallon was legal, so the court thought the difference was arbitrary. I also really like the case Thiede v. Town of Scandia Valley (Minnesota 1944) which recognized the right to establish a home. As for my favorite unenumerated right? Maybe the right to eat brisket. I like that one a lot.

Do you have any concerns around unenumerated rights that are just hanging out in the open, but nobody is talking about them or bringing them up? Perhaps some open secrets in the conlaw world that people are just waiting for the shoe to drop?

Yes, big concerns! And that's that judges don't take them seriously. The story I tell in the book is of Americans coming together over and over again in history to protect unenumerated rights in our constitutions. Americans have done this dozens of times. And yet judges treat unenumerated rights like a weird exception to the rest of our legal system. They're not, they're normal. They're popular! And it's time judges started treating them that way.

Which states have such laws in their constitutions?

There are 33 of them! A full list is in the appendix to my book. You can read it for free at https://www.fulcrum.org/concern/monographs/ww72bd75z#description

This sounds like something Randy Barnett would love. Did you consult any of his work on the subject?

Oh yes. Feel free to check the endnotes. You can find the entire book for free here: https://www.fulcrum.org/concern/monographs/ww72bd75z#description

In another comment you've stated that "the most “settled” would be the right to travel" but states have already passed laws restricting the travel of women. Is it not “settled” in this case because the constitution doesn't apply to women?

Seems clear the U.S. constitution still today does not adequately protect citizens from sex discrimination leaving U.S. women in limbo with a legal system that was never meant to protect them. After all aren't women still basically under coverture laws in the US unless the ERA passes?

The US Supreme Court has said the right to travel is a right protected by the Constitution. Whether it is rightfully restricted in certain ways or not protected can vary. In 1999, for example, the Court said a California law that mandated someone had to live in the state for 12 months before receiving welfare benefits violated the right to travel.

So are you saying that Saenz v. Roe could be used in courts to argue that women have the right to freedom of travel? Or, would it still be necessary for the ERA to get passed before ensuring women can gain that right?

It could be used to argue that, yes. Whether it would work is a different question.

What's the solution to scrap these Unenumerated Rights?(without harming personal freedom)

The problem is scrapping unenumerated rights would harm personal freedom, because unenumerated rights protect personal freedom.

I'm a big 2A arguer. I think we all know what the Supreme Court did with it's Dobbs decision with respect to the unenumerated right of abortion through medical privacy.

I've argued in pro-gun communities that Dobbs laid a foundation that could be used to attack the unenumerated right of Self Defense. I think that through the lens of Dobbs there at least ground to argue against the 2008 case of DC vs Heller. Heller held originally that the 2A extends to possession and bearing of handguns for the purpose of individual self defense.

I suppose an over all question would be: What are your thoughts on the relative strength of the unenumerated right of self defense?

It's definitely not a right that' given up through the social contract. That means it's one of the rights "retained by the people." How much it can be regulated is the big question. But is it a right in the first place? Absolutely.

https://jaxtrib.org/2023/05/23/i-cant-miss-those-doses-jacksonville-man-died-after-jail-denied-him-heart-transplant-medicine/

Are you sure these rights are not figments of your imagination? If these rights are so fragile that any officer can strip them, then they dont really exist.

Well, they are referred to in 33 different state constitutions. You're right that there's nothing if they're not enforced, but Americans have crafted our fundamental laws over and over again to protect them.