Baby Ninth Amendments Quotes

“The absolute latest date where judicial review became a generally recognized tool of government is 1803, with the famous case of Marbury v. Madison. There is an incorrect but popular notion, not so much among scholars but among lawyers and the general public, that judicial review was “invented” by Chief Justice John Marshall in that case.73 But the evidence demonstrates that judicial review in fact goes back earlier to at least the framing of the U.S. Constitution. And arguably, at least as an idea, back to inventive common law judges in England, especially Lord Edward Coke (pronounced “cook”).”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“George Mason’s Lockean natural rights guarantee continued to be popular. Versions of it specifying its various expansive protections of the rights to pursue happiness and acquire property had been adopted by seven states by 1818.72 Therefore, by the early nineteenth century state constitutional drafters had learned to do two things: protect rights broadly through fairly open-ended constitutional language, and exempt rights out of the powers that the people extend to state governments.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“Thus it could be argued that the Baby Tenth exempted out of the state’s general powers the broad rights that the Lockean provision protected, such as the right to pursue happiness.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“demonstrates a belief in popular sovereignty, something commonly held at the time of the U.S. Constitution’s adoption. This view of the legitimacy of government asserts that sovereignty did not reside in the federal or state governments, but ultimately in the people themselves.65 The people can delegate their sovereignty however they wish, either through enumerated powers (à la the federal government) or general powers (à la the states). They could also, presumably, delegate no powers to any government and live in complete anarchy.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“Thus, to protect against any power being used to violate the rights in the declaration of rights, such rights-violating powers are expressly not delegated as part of those “general powers.” It is not simply that the constitution affirmatively protects those rights, but that the power to violate them is not given to the state government in the first place. This, in a sense, was an answer to Hamilton’s and the Federalists’ promise that enumerated powers would not infringe on rights: we will not only spell those rights out, but explain that those powers do not extend to those rights at all. Pennsylvania’s framers intended to hold up their liberties with a belt and pair of suspenders.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“In later unenumerated rights cases the Supreme Court has, for whatever reason, shied away from Justice Goldberg’s suggestion. That has not prevented it from using tests looking to “traditions” and the like for “fundamental rights” worthy of its protection, such as in famous unenumerated rights cases like Roe v. Wade (abortion), Troxel v. Granville (parents’ right to direct the upbringing of their children), or Lawrence v. Texas (right of same-sex intimate sexual conduct).59 But in none of those or related cases has it invoked the Ninth Amendment beyond, at best, a passing reference. Thus, Justice Goldberg’s undeveloped but interesting thoughts on the matter are the only more than transitory statements on the Ninth Amendment from the nation’s highest court.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“For, read properly, the ninth amendment creates no rights at all. There are no “ninth amendment rights” in the sense in which there are, for example, first amendment rights or fourth amendment rights. That there are individual rights fully derivable from no single provision but implicit in several, or in the structure of the Bill of Rights as a whole, is a proposition implicit in the ninth amendment. But that amendment is not itself the fount of any such rights, and it in no way obviates the need to argue that the Constitution does indeed impose upon government the particular limitation for which the advocate contends.52 Thus the Ninth Amendment itself does not protect a right, but tells us not to not find a right in the Constitution just because it is not specifically enumerated. The right to privacy still needs some kind of constitutional hook, although that hook might be the Due Process Clause of the Fourteenth Amendment, for example, even though the clause does not mention “privacy.” In interpreting that clause, and other clauses, we should be mindful of their more expansive interpretations.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“other “nonoriginalist” views of the Ninth Amendment so we have a better idea of how it is seen. One such view is that of Professor Laurence Tribe. He thinks the Ninth Amendment is important, but only as a reminder that the fact that a right is not enumerated is not a reason to conclude it is not constitutionality protected. In this way he is essentially in league with the originalist proponents of the individual rights model, although not entirely and only in a general sense. He argues that the Ninth Amendment does not itself protect rights, but prevents the argument that a right is not protected because it is not enumerated:”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“The sixth model, that of Professor McConnell, pays close attention to the use of the word “retained” in the Ninth Amendment. McConnell argues the Ninth was adopted with the backdrop of the state of nature theory of philosopher John Locke. Under Locke’s view—recognized as influential at the time of the American Revolution and the Constitution’s framing—people have “natural rights” in the state of nature, the theoretical mode of living before people ever came together to form a government and establish civil society.51 People discover that it benefits them to give up some of their rights in exchange for creating a government that will then allow them to live in greater security and achieve greater prosperity. Thus they form a society where they give up rights, such as the right to punish others for wronging them, and turn those rights over to their collective body, the government. But they by no means give up all natural rights. Those rights that they do not relinquish they “retain.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“The fifth model is the federalism model. It is in some ways the flip side of the residual rights model. Here the Ninth Amendment works with the Tenth Amendment to limit the federal government to a narrow reading of its enumerated powers. Instead of fighting against a conclusion that the federal government has general, unenumerated powers, the federalism model has the Ninth Amendment fighting against a conclusion that the federal government has broad enumerated powers.50 In other words, it fights against pretty much exactly how the post–New Deal Supreme Court has interpreted the Commerce Clause, allowing just about any regulation that has anything to do with commerce of any kind, which is basically any regulation.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“The fourth model, the collective rights model, believes the amendment is a rule of construction that does protect rights, but collective rights of people in the states. A foremost example of such a collective right, put forward by Professor Akhil Amar, is the right of the people to alter or abolish their government.48 Another is the right of a state’s body politic to choose the policies it wants to adopt free from federal government interference.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“The third model, the individual rights model, is that the Ninth Amendment tells us that just because there are enumerated rights in the Constitution does not mean that there are not other rights, and that those rights should not be “denied or disparaged” just because they are not enumerated.45 Those rights receive constitutional protection because if they did not they would be “denied or disparaged” simply because they were unenumerated.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“The second model for the original meaning of the Ninth Amendment is the residual rights model. Here the Ninth Amendment prevents a specific argument: that Congress has broader powers than it otherwise would have if enumerated rights had not been placed in the Constitution.44 Under this view, it could be supposed, for example, that because there is a prohibition on violating the freedom of the press, that means Congress actually would have a power to regulate the freedom of the press if it were not for the First Amendment. This would then imply that Congress has additional, unenumerated powers. Under this model, however, the Ninth Amendment makes unavailable that particular argument.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

“The first model of what the Ninth Amendment might have meant when it came into being is the state law rights model. Under this model, the Ninth Amendment simply tells us that rights enjoyed under state law “continue in force under the Constitution until modified or eliminated by state enactment, by federal preemption, or by a judicial determination of unconstitutionality.”43 The Ninth Amendment does not protect these rights from the federal government, it simply says the rights “continue in force” until changed or overridden. For example, state laws regulating the formation of contracts continue in force after the adoption of the Constitution, but might be pre-empted by federal legislation in the future.”
― Anthony B Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters