Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

foreign [Music] [Music] [Music] foreign [Music] thank you foreign [Music] [Music] foreign [Music] and welcome to today's Cato book Forum I'm Clark Neely senior vice president for legal studies here at Cato and I am delighted to welcome my former Institute for justice colleague Anthony Sanders who is head of ij's Center for judicial engagement and more importantly for today's purposes uh the author of a very exciting new book titled baby ninth amendments how America Americans embraced onion raid rights and why it matters welcome Anthony foreign thanks so much for uh having me on Clark it's delightful to be able to launch the book with Cato uh as uh your old colleague Roger Pollan likes to brag I was his first blue Booker on the Cato Supreme Court review so it's uh it's nice to come full circle here good well welcome back and uh we would be I think remiss if we didn't Dive Right In so let's do it um for those of us who are interested not only in sort of the theory of constitutional law but also sort of the practice and the implementation of constitutional law a really important issue is whether a given Constitution and of course we do have both a Federal Constitution the Constitution but then every state has its own state constitution but a key question is whether a given constitution does or does not protect rights that are not specifically listed in the text of the Constitution what what we have to call unfortunately for one of a better term a somewhat clumsy sounding term unenumerated rights simply meaning rights that are not specifically listed in the text of the Constitution why don't we start with um a a sort of a brief discussion of why this is such an important and challenging question when it comes to constitutional law from a practical standpoint from actually trying to implement a constitution to protect people's rights can you talk about that yeah you bet Clark so there's a couple ways that I like to explain this problem that I argue in the book these these Provisions called Baby ninth amendments solve but there's other ways you could try and solve this problem and the problem is you want to protect rights with your Constitution whether it's your Federal Constitution your state constitution but you realize that there's a lot of Rights you could protect and you can't list them all so for example just think about and I do this in in the introduction of the book as a thought experiment think about all of the things that you do in a day so some are very important some are very mundane but they're all rather important to you so you get up at the time that you choose for yourself you eat what you think is best for you what you choose for yourself you go to work and that may be a job that you chose over other options that you might have had you might do something like put if you're a parent put your child in a school and that might be a school you chose over other options then you might do things such as Garden you might Garden in your front yard you might play basketball with some friends there's a lot of choices you make in the course of a day now what if there's a law that's passed that restricts those choices or even eliminates them such as an extreme example the state of Oregon once uh passed a referendum to ban all private schools That Was Then challenged in court why was it challenged in court because people have a sense that if you're going to restrict something like that it violates my rights and we have certain rights in the United States and if the government violates them you should be able to go to court to protect yourself now the problem is with the the list that I just gave things you might do during your day is that if you look at the Federal Constitution or you look at your own State Constitution which is structured in a similar similar way in every state and every state has its own Bill of Rights like the federal Bill of Rights you will notice that just about none of those activities that I listed is actually in your Bill of Rights right you got speech in there you got religion there's various protections for criminal uh procedure there's some other rights in there takings but there's not the right to you know get up when you want the right to harden the right to earn a living is in very few state constitutions so how do we protect these rights well now put yourself in a different place put yourself in the shoes of your at a state Constitutional Convention and you're helping write the Constitution pretty cool responsibility and this has happened many many times in U.S history we all know the story of 1787 when the founding fathers got together and they hashed out the U.S Constitution and then they amended it a couple years later well the same has happened in every state and some states numerous times in fact so you're at the state Constitutional Convention and you're you're redoing the Constitution and you're going to redo your own State Bill of Rights and you want to be very protective of Rights and so you're on the committee perhaps that's writing this Bill of Rights and so you put all the rights in there that we all know from the Federal Constitution speech religion cruel or unusual punishment you put in rights that were in the old state constitution and then maybe you look around at other neighboring states and put in some of those rights there's all kinds of interesting rights and state bills of Rights if you want to look around the country and then you start soliciting ideas from people and they say well how about a right to this or write to that right to Garden we should put that in there our right to get up whenever you wish and then you start thinking wait you know if we put all of these rights in there we're getting a pretty long list and it Dawns on you as it should Dawn on everyone that if you're just talking about the exercise of your Liberty there are literally an infinite number of Rights because there's an infinite number of ways that we exercise our Liberty and that we interact with each other and so you say well look we can't list everything and so how do you get around that you list some that's going to imply that those are the only rights there are but you can't list everything and so Americans have come to a solution this took a long time it evolved over the course of U.S history I think it was done early on with the Federal Constitution Others May disagree but what I think my book shows is that over time Americans came up with a solution which is at the end of a Bill of Rights you just say etc etc there are other rights that are just as important we can't list them all but they're also protected and that's what this language from the Ninth Amendment to the US Constitution that is then put in most state constitutions does it kind of tries to square the circle of protecting some rights but also protecting others so a lot to get into there and let me start by uh saying this my experience is that people who don't like the idea of unenumerated Rights or at least they don't like the idea of Judges protecting rights that are not specifically listed in the Constitution often have a tendency to sort of kind of pooh-poo those rights or minimize them or suggest well the you know it's just really economic rights um and I want to meet that head on and and say that you know this is not hypothetical I want to make sure people understand that so for example uh in the early part of the 20th century uh we began a horrible uh National obsession with eugenic sterilization and at one time uh two-thirds I believe or more than half at least of all states had laws requiring eugenic sterilization that was a case that went to the U.S Supreme Court the infamous Buck the Bell case do you have an unenumerated right not to have your reproductive organs torn out by uh State sanctioned eugenesis pretty important question I would say in more modern times of course the question has arisen whether you have a constitutional right an unenumerated constitutional right to access potentially life-saving drugs there was a case um called Abigail Alliance in the DC circuit it was a group of people that were terminally ill with cancer they had exhausted all possible therapies and medications but their doctors said you know what there's an unapproved drug that's going through FDA approval process that might save you they challenged in court the fda's withholding of that drug and they were told by the D.C circuit nope that's an unenumerated right that we are not prepared to protect in any meaningful way so I invite you to sort of comment if you'd like to on this idea that there's not really that much at stake here in terms of protecting unenumerated rights because they're just trivial things like what time you get up or whether you can wear a hat uh you know whether you can have a garden in your front yard and maybe that means you know a lot to you but like your life doesn't really depend on any of those things so respond to that if you would sure yeah uh well I so starting at the beginning do we have an unenumerated right to those things that you just identified such as bodily saving drugs um life-saving drugs you have to ask what does the Constitution say so there are some Libertarians who might argue I don't care what the Bill of Rights say these are rights that we just have are protected and our Judiciary should be enforcing them and I get that argument and I'm not saying that argument isn't right but I think the way that courts are comfortable adjudicating these things and the way that people usually think about these uh these matters when they write constitutions is to say well what does the Constitution say and because Americans like a broad protection of Rights we have written our constitutions to do just that and so we don't have to worry about you know this is just a a natural right that should be protected no matter what it's actually there in the Constitution why is it there in the Constitution because of precisely what you were just talking about part that say the right to bodily Integrity or the right to try to to take medicine from a doctor who's willing to provide it to you to try to save your own life those are just basic natural rights that are pretty obvious that we should have in some way and have some measure of protection for and therefore it's no surprise that if you look at our state and federal constitutions that those kinds of broad protections are in there and they're in there because Constitution writers have done this two-step where we identify a lot of Rights we know we can't identify them all and so then we have have some language that does that so maybe some of the listeners would be like okay well what is this language that you're talking about so the Ninth Amendment many of you may know which is uh often called the stepchild of the Constitution because it's so often been ignored by the by the federal courts it said the it says the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people uh that language is put in there uh was drafted in 1789 and then adopted in 1791 in the Federal Constitution and there are many people who argue well that doesn't actually mean what it says it doesn't actually protect these but your right to bodily Integrity or or what have you because it's really about federalism or it's really about uh a status quo when the when when the Constitution was ratified for not infringing on the state's rights or what have you I don't think those are correct arguments I uh I I go with the argument made by a Cato scholar Randy Barnett that these actually means what it says and protects rights Beyond those those but what do you do then when you have that language in a state constitution where there's no federalism right there's not you don't have the same history of the interplay of the Tenth Amendment and all these other arguments that we don't need to worry about today you just have it in the state constitution it says other rights retained by the people you the the most important thing to do there is to look at the word retain I spent a lot of time in the book worrying about what this word retained is what retained is doing is speaking to this idea of a social contract now social contract isn't a real thing it didn't actually happen in the from the the state of nature going into society um as social contract theorists have talked about and some of you probably remember from philosophy class or what have you but it's a way to think about how we share our uh how we balance our rights and the powers of government so the idea is we have certain rights that are that we have as as individual people then we come together in society we give up some of those rights we do give up some of those rights to government but we retain others now what's a right that we would retain that we don't really need to have a you know functioning Society where we can have a government that protects our rights provide some public goods but otherwise we get uh we get to keep other uh the other rights well I think the ones you just identified are pretty obvious your right to bodily Integrity just because it's not specifically listed elsewhere in the Bill of Rights does not mean say the government has a right to come and sterilize me or pick a body part or do something else horrendous to my person and that is protected as a retained right and then we can argue about well where is that line and where's the government's legitimate interest and in um regulating some of these rights that's a that's a different argument but the fact that the right is there and that it is specifically protected by the Constitution through this open-ended language uh is not that hard to Fathom and one thing I I really hope people take from the book whether you with all the by new show of what I I talk about is that this was not a weird way to think about how we would structure a constitution that we would have this problem of listing some rights and then not wanting others to be implied and having rights come up in the future that we haven't even thought about right who was thinking about sterilization say when a a state structured its Constitution decades before uh the Progressive Era that that you were just discussing and so we have this language that can be applied in the future when we come to new situations that are going to present new challenges and we can think about what those rights are that are routine that are nevertheless protected by the Constitution the points that you make in the book is that there's a real tension between the seemingly clear language um that appears in in the Constitutions of about two-thirds of the states the baby ninth amendments that that have some um you know somewhat similar wording of the Federal Ninth Amendment but that in one way or another expressed the idea that that we all retain these unenumerated constitutional rights there's a tension between the clarity of that language and the cereal although not unremitting failure of the Judiciary to implement that language to enforce now you have some examples um a handful of examples of course enforcing baby ninth amendments we'll get to that in just a second but let's let's sort of preview this by by giving you a chance to kind of explain um for the listeners why is there this disconnect you've got this fairly clear language I think you make a very powerful case that the language is in fact clear and again because this Etc language as you describe it appears in a state constitution we don't have some of these arguments that have been deployed against giving the Ninth Amendment to the U.S Constitution any substance you know it's a federalism provision or it's you know some other um uh you know sort of hortatory formulation this is in the language of a state constitution and it gives fairly clear instructions one would think to the Judiciary to enforce rights that are not specifically enumerated the Constitution tell us you know first explain in your own words whether it's accurate to say that State Court judges and uh courts state courts on your view have been insufficiently uh dutiful in in implementing that language and if so why sure um well I wish I had more of a of an answer to why um but I'm I'll do my best to uh uh to answer you um so state courts over the years have done a lot of what federal courts have done in fact your uh your book Clark terms of Engagement about the failures that the federal Judiciary to do a lot of these things a lot of that could apply in many states to uh to state courts so state courts have been serious with their constitution at times over the years they've identified not just in in baby ninth amendments but other provisions of their state bills of Rights and tried to protect rights with the with that language and taking that language seriously but like the federal courts they have often look the other way um and put a thumb on the scale of the side of government when um when the government is violating people's rights so there's kind of a a bit of a a too cute answer to some extent to your to your questions which is that state judges just like federal judges at times have not been engaged with either the texts of the State Constitution or with the um uh the facts and the matter before them now there's a few other things going on here though and one is that a lot of the times when state courts have enforced unenumerated rights over the years whether we're talking about the right to contract which was just like at the federal level more enforced say in the early 20th century than it than it is today or more um personal rights such as some privacy rights which also are a little bit more enforcing the last 50 60 years just like at the federal level that has often been done with uh the same tools that the federal courts have used which is uh the idea of substantive due process usually based on an actual due process clause sometimes not though and other similar Provisions like that in state constitutions and sometimes you get courts that you know don't even worry about the text of the Constitution at all uh that just say this is just not right we're going to say it's unconstitutional so I think some of it is following the errors of the federal Judiciary even if there are errors that maybe we can be sympathetic for um now I think that the idea of substantive due process is um is grounded in history grounded in the text is something legitimate that courts do but compared to Alternatives it can be a little clunky right we we often argue in Clark you've argued much more than I have that in the 14th Amendment the Privileges or immunities clause would do much better work at protecting unenumerated rights than the way that the that the idea of substantive due process has been used the same can be said in state courts now there are occasional examples as you as you said that this uh this breaks through and you use the in language that's more suited to protecting unenumerated rights is used than um then State due process Clauses for example and I think some of that as I said is the state courts following federal courts but I think some of it at times um and more recently we could say too some of it we should put a little bit of the onus on the lawyers um and that uh lawyers when they're representing a client they are being in in many ways conservative because that's the way law works incrementally and so they're they're raising these cases and they're relying on say substantive through process precedence because they've been raised in the future and I and I get that um but I think that uh in if we maybe look peek ahead to the Future for a moment um I think that could be changing a bit and and I see signs of this in some state courts recently with the whole uh re-attention to text and um readers not rediscovery of text but the whole texturus Revolution Justice Scalia and and all of that movement most people think about that in terms of uh statutory interpretation and the Federal Constitution but there have been more serious attempts and it's not just a conservative thing with more Progressive judges too a pain closer attention to the Texas state constitutions I think when they do that uh not just baby ninth amendments but other Provisions in state constitutions that are protecting rights are taken a bit more seriously and so I have some hope for the future um that this is going to change but yeah why the last you know 200 years of baby Knights amendments being out there and not being used as much as they as they could be I think it's it's largely this uh judicial uh abdication to some extent but also a bit of the Dead Hand of the past pick up the pace a little bit and and and turn this into a little bit more of sort of a back and forth and it's going to feel a little bit like a cross-examination but it won't be a hostile one I want us to posit um an appropriately engaged State Court Judge perhaps a state supreme court justice who's really trying to get this right let's say this person basically is sympathetic to to the points that you've been making um and and feels committed to fully enforcing all of the provisions of the State Constitution including the baby Ninth Amendment um one of the stories that you relate in uh your book is an actual IJ case where um these two for justice represented a couple in Florida um That Grew vegetables in the front yard of their house now as I recall um the the the city ordinance said you can grow vegetables in the back that's fine but you can't grow vegetables in the front um but in their case I believe they had some trees in the back it was shady it's not a good place to grow vegetables so they did it in front and they were told that they had to tear out that vegetable garden you know or face some kind of ruinous fine and and they challenged that law and asserted a constitutional right to grow vegetables in the front of the house is that all accurate so far yes uh what one additional detail the viewers like might uh be interested in is they could grow fruit and flowers in the front yard they just could not grow vegetables interesting okay so the the government's argument as I as I recall and I think you say this in the book was largely aesthetic this is really it's not a health and safety issue it's basically it's just we want the neighborhood to look neat and grow letting people grow vegetables in the front yard doesn't look neat right that's right yeah okay so then you know let's kind of let's work through this and and and do some hypotheticals so you're allowed to grow fruit well what if they grew I don't know if you ever ever encountered a durian but it's a tropical fruit that is notoriously stinky right so now imagine that they're growing durians and some of them are rotting on the ground and it's not just that the yard doesn't look neat it smells awful um uh I've encountered a durian I don't like the way they smell most people don't you're not allowed to bring them into a hotel in some parts of Southeast Asia and uh one of the best descriptions I've ever heard is somebody described it is it smells like sugary trash um would you nevertheless uh so now I'm a state supreme court judge Justice uh trying to work through this case do you have a an unenumerated right to grow stinky fruit in your front yard or is that a legitimate exercise a government power to say you know what that's just too much if it was an apple that would be one thing but this is a stinky durian and everybody's choking well I think you you gave me a little bit of a loaded question there when you said it's a stinky fruit right so you definitely have a right to do what you want with your property including um growing a fruit on it but then there's a line there there's there's a line between people's rights all the time and that's why we have government in the first place and that's if it's stinky well is it causing well we common law lawyers call a nuisance so if it's creating a nuisance for your neighbor um and and you know just like you might with uh uh with a pile of garbage in front of your house or a compost heat that you're not properly caring for well then that can't that that has a effect on your neighbors in a way that would be violating their rights so if the ordinance says you know no stinky fruits yeah and um you get into an argument over whether it's a stinky fruit or not I think that's probably a fine ordinance because it's about a nuisance but if it's just you can't have fruit well then we're gonna have to look at the facts I'm gonna pursue this because this I think this is really where the rubber hits the road it seems like it's chopping it pretty fine to say that an unkempt vegetable garden that is visually unappealing um is is well within your unenumerated rights and even if people really hate the aesthetic that's not a nuisance because it's just visual clutter and and Visually unappealing but if it's olfactory then oh that's different now it's a nuisance um and I'm not mocking the position and it may well be that common law makes a sufficiently clear distinction but does that strike you as a as as a powerful distinction that you know somebody asserting the right to keep an unkempt you know sort of visually ugly vegetable garden in their front yard is on really firm footing but somebody who wants to grow an unpleasant smelling vegetable or fruit well they're out of luck because common law says that's a nuisance I think that uh there's definitely a difference between those two but I think the fact that we're having a conversation about that difference and about what the nitty-gritty means um between the two means that we're in a different territory than the Florida courts were when they examined that lawsuit so in that lawsuit we that if we made the the argument uh my uh our colleague Ari bargiel made the argument that um there is a right to grow vegetables in your front lawn and this ordinance is violating it and what the court could have done there is said okay you have this right you do have this right but we are now going to an examine if the government in its pursuit of the public good can override that right or can regulate it in this way based on the facts of uh you know what whatever it may be based on the facts of the neighborhood your lawn and the government's interest in protecting that visual blight of whatever it is in your line now we're going to disagree about whether whether visual blight you know is anywhere close to a stinky fruit uh I don't think it is I don't think most people would agree with that but the fact that we're having that conversation means we're doing what courts do when they do real adjudication about rights such as when it comes to free speech when it comes to freedom of religion when it comes to a lot of time types of equal protection they're making those questions they're looking at the facts and we we were going to have a result that maybe some of us are going to disagree with but we think that the constitution was given its due that's not what happened in that case when the court really just rubber stamped what the government did because it did not take that right seriously and that's generally not what happens when it comes to unenumerated rights so I hope that wasn't a bit of a non-answer but I think it maybe it shows the viewers the difference between the um taking the right seriously and perhaps the property over owner still losing and then saying the right really doesn't exist at all no I think that is an important distinction and it it you know it's I think it's a consistent thread throughout the book um I want to make it I don't know if it's going to make it harder or not but I want to make it at least more realistic right because it's not as if there's lots of people who'd like to grow durians you know in their yard and can't but there are lots of people who'd like to grow marijuana on their property and that is absolutely forbidden um under the Federal Constitution I'm sorry under federal law but also you know still in some states so let's put the federal law aside for one moment um what about a state that has not yet legalized uh the cultivation or possession of marijuana and somebody wants to grow some on their yard maybe maybe we you know a classic IJ client right so very sympathetic maybe it's somebody who's been in combat um and is is is wants to use uh personally uh cultivated marijuana uh to treat their PTSD um or they have seizures whatever you know they've got a I don't think they need a sympathetic reason but let's say they have one right just to make them an extra good plaintiff um work through that for us if you would I mean is the right to grow an intoxicating plant that has been criminalized uh under federal law or at least you know regulated and then criminalized for nearly a century um is that credibly among our unenumerated rights that would be protected by that States baby Ninth Amendment interview well I would think similar analysis first question is what is the right that you're talking about most basically the right you have is right to grow stuff well absolutely you have a right to that as long as you own the property you're not bothering anyone else with the with the growing um you can grow that now is there some other reason now say I was growing a plant um that just by its nature gave off so much pollen that an unnatural kind of pond that wasn't prevalent in the area and it made everybody around me automatically uh go into some severe hay fever um and the the city came and said you know we just can't allow that kind of plant to to be growing in our neighborhood because it's just not it's not safe maybe if you had 40 acres it'd be okay but on on your suburban plot it it's just not uh gonna be allowed this city would have a good argument there that that is a in a necessary or a permissible regulation of that right when it comes to marijuana things get a little bit harder right because it's not that that's not what's happening is that I'm going to cultivate it and and then we have to get into whether I'm selling it I'm doing it for my uh I'm having it for myself is it okay for the state to just prohibit everyone in that state from taking that substance as you might make the argument for um or more dangerous kinds of drugs not that I'm agreeing with that I'm just saying it would be a different analysis than marijuana but that is how the court would look at that so it wouldn't say as a as a court generally would say today well sorry there's no uh history and tradition for growing marijuana even though of course there is and so therefore you get rational basis review and if the state thinks it's bad then it can ban it industry yeah so um one of the things that has emerged in this discussion is also I think very much a theme in your book is that um even if one can credibly assert a right to do something that should be protected by a fair reading of of let's say your State's baby ninth amendment that if the government has a sufficiently strong justification it may be that they can overcome that right whether it's growing vegetables or stinky fruit or potentially impairing uh you know uh intoxicant I was a little bit surprised to to to see something in the book and I'm not I'm not it's not a criticism I really want to engage with you on the discussion there was a passage um uh let's see on page 118 where you say that um that presumptively there would be a right uh to birth control but that the government might be able to forbid you from taking a particular kind of birth control that was dangerous now that is a pure paternalism argument as I understand and a lot of Libertarians are going to have a real problem with any kind of a paternalism-based argument because then you start asking questions like Okay can they forbid me from riding a motorcycle because that's way more dangerous than driving a car can they forbid me from going scuba diving because that's a relatively hazardous Pastime Etc you get the point so to to kind of crystallize this as a question um do baby ninth amendments help us to better understand what kinds of justifications may be permissible for a government to assert and which ones are not and let's start with paternalism do you stand by that remark for example in the book that that if a form of birth control were sufficiently hazardous that the government would then be able to overcome somebody's unenumerated right to yeah what what I'm getting what I'm getting at with that example is that just like in this case of say Free Speech or religion which are enumerated rights that when the government is regulating one of these unenumerated rights that there could be an argument like that that could overcome your uh your desire to exercise that right so paternalism um not something I uh addressed on its merits in the book do I think paternalism on its own is a legitimate governmental interest I tend to think not I think there could be you could make an argument that the government can do something that is purely to protect you even if it is not going to harm everybody else for you know in in certain situations I wouldn't leave that out but the main point of that that that that passage in talking about an unenumerated right is if it if it can do is let's think about that government interest and the same way we think about overcoming an enumerated right whether it's right to keep and bear arms uh write the Free Speech right there are other rights that are enumerated in in federal and state constitutions so how we do that balancing how we think about that I think would be uh a lot of it would be about this balance between the rights that we retain and the rights that we give give up for legitimate governmental uh functions now those are some hard questions definitely some hard questions some hard lines to draw but we have a lot of those hard questions when we talk about enumerated rights and we're happy that we have those it's like it's a good problem to have right that we're having rights protected and yet we still need to draw the line somewhere and so we're not we need to balance those um when we when we pass our laws and when we adjudicate our laws that the same is going to be true when we're talking about an unenumerated right like the right to use birth control yeah I mean I think we're we're sort of at the heart of the issue here right because um you know if we're going to be fair-minded I think we have to acknowledge that um you know the government has uh legitimate interests I know this comes up for example uh in the Second Amendment area I as you know I helped litigate the Heller case and um an issue that the courts are eventually going to have to resolve is does arms mean like literally any kind of a Lethal Weapon up to an including tactical nuclear weapons is there a personal right to possess those um and if not why not and where do we draw that line um earlier in the book you cite as one of the handful of courts that actually applied a baby ninth in a protective way the North Carolina Supreme Court in a 1908 decision held that the state's baby ninth protects the right of a person to import to bring alcohol into a dry county to their own home for personal use did I get that right that's right yeah okay so um so this was interesting I think because um you know as a I'm a fan of that uh particular intoxicant myself um and um but at the same time I think we have to acknowledge that it is um throughout human history it's a pretty destructive intoxicant um somewhere between 80 and 100 000 people uh die in the United States every year through alcohol-related diseases and accidents um it seems to engender a significant amount of violence and bad Judgment of course it we've reduced the number of of drunken driving deaths but that still happens so what do we say to a community that just says look this is a powerful intoxicant with a really bad record and we just want to live in a community where we don't have to be exposed to people who've been impaired by this notoriously uh sometimes you know sort of or or potentially dangerous intoxicant that's what we've chosen for ourselves and now the courts are going to step in and say no this person has a right to possess and consume this intoxicant that is you know associated with a fair amount of of dysfunctional Behavior throughout history did the North Carolina Supreme Court in your judgment get this right in other words that the the ninth the baby Ninth Amendment of the North Carolina Constitution is best read as protecting a right of personal access to alcohol notwithstanding an effort by a democratic majority to just say no not in this County respond yeah so in that case it gets a little complicated unfortunately but in that case I think they did come to the right result it might not be true in other cases it might not be true in other state constitutions and that there's a little bit of balancing there I uh hopefully I can talk about in a moment but in that case there there were so liquor was allowed for certain reasons in the county it was allowed for under a gallon in the county for personal use you could bring in under a gallon for your own personal use and but it was you couldn't make liquor there and you couldn't sell liquor there and the defendant he had a it was a gallon and a half is what he was prosecuted for there was no evidence he was going to be selling it to anyone it was simply for him and his own family if he had brought it to a drugstore um then that would have been okay because you could have liquor for medicinal or uh or or reasons and so the court said you know what he has this inherent right to have this liquor and to imbibe it if he wishes for his own use and you're not oh you're you're not overcoming that here and part of the reason you're not overcoming that is like you're not really that serious about this particular instance before the fact that if he had just had half a gallon less he would have been perfectly fine now you could imagine of course a different scenario where there weren't those mitigating factors about how serious the government was and so um then you might look further into uh but what the what the actual interest uh was and of either the person or the the or the government I would say that I think um there are definitely all the mitigating factors you're talking about um when uh or not mitigating factors but they're all the the deleterious factors you're talking about when it comes to alcohol is definitely different than other substances that that we put into our body so there's going to be an analysis that wait a little further on the side of the government than say if it was just Banning margarine which is another example that comes up in in some of these cases um and you know what the I think the end result of that would probably be that nevertheless it would a a total ban like that would be unconstitutional but I will add something and that's that I'm talking about the text of these baby ninth amendments that have been adopted in a number of states one of those States at one time had other parts of their constitution that said we're a dry state So that obviously is accepting out of the whole retained methodology about what rights are protected that nevertheless we are not protecting that right and therefore you wouldn't inter now maybe I disagree with that on policy grants but you would not interpret that constitution in that way and I think that demonstrates that there's some play in the joints there where if states did have that kind of a Viewpoint about alcohol they could do something about it and where and and we don't we're not going we don't have to be beholden to one particular provision of a constitution let's stay in the vicinity of this topic I want to work in a reader uh one of our listener questions and that is um how should baby ninth amendments uh help shape the way we think about the morals uh ahead of the police power um so let's take another example um not too far afield from alcohol in terms of our history of Regulation would a state's baby Ninth Amendment protect for example an individual right to uh to participate in prostitution or gambling these are two activities that have been historically uh regulated both by state and federal governments and that lots of people wish to participate in um and some people would even argue they have a right to participate in and have argued that they have a right to participate in um what would it would a baby Ninth Amendment help us have a clearer understanding um of how to go about adjudicating such a claim what would definitely have a clear understanding that those activities you're trying to participate in that by definition are going to be voluntary right whether you're talking about gambling or prosecution on on both sides that you are going to look at it as something that is a retain is a right so the question is is it a retained right is it not is it okay or is the government constitutionally forbidden from whatever the regulation they are doing whether it's outright Banning it or having a you know Capital amount you can gamble or or what have you um and part of that would be understanding that there are certain deleterious consequences that come out of say uh you know gambling that doesn't come out of just people getting together to play cards where there's no money involved or prostitution that doesn't come up um and you know all the understandable societal impacts that happen from prostitution um that don't happen when you just have normal consensual sex now on the other side of that right there's what are the effects of the government doing these prohibitions um the all like Cato um uh Cato sponsors know about all the deleterious effects of the War on Drugs right does it actually make it worse some of those issues would have to be put into the analysis about like is it really going to be better off if we if we have this prohibition because you're just going to have these other problems over here that's all part of uh of the analysis I know I bet some people are are wondering at this point you know are you going to be a not uh do you want judges to do all this with strict scrutiny which is you know the what lawyers talk about uh when we adjudicate rights where the government needs uh almost impossible uh being almost impossible odds to show that it's constitutional because they have to show that there's no other way of of addressing these problems or is it going to be some lower level of scrutiny and my probably unsatisfactory answer is it doesn't really need to be any particular level of scrutiny as long it's being faithful to the text of of these Provisions if it's done the same way we do enumerated rights and also if it's not a uh what you often call dog ate my homework level of scrutiny where it's the federal rational basis test where there's there's really no analysis of all these issues that I was just talking about that of course um are important when we're talking about the trade-off between the rights and the government's interest in in regulating them yeah it's funny when you talk about standards of review I know when I was out talking about my book and you know certainly both of us in talking about the work that we do as as libertarian constitutional lawyers people obsess over this oh are you calling for strict scrutiny and ever across the board and you know my response and it sounds a little flipping or maybe a little tongue-in-cheek but it's really not is you know I don't get too hung up on that because in my experience what it really comes down to is does the government have to give an honest answer supported by any credible evidence and if the answer is yes half the time they'll just give up um because like there really isn't anything legitimate going on they weren't really trying to license who can braid hair because there's some you know somebody could get their hair yanked out or an infection they were just trying to put people out of work so if they have to give an honest explanation in court about you know what they're really trying to accomplish that regulation they're just going to give up and go home so let's not get too hung up on standard review but I wanted to uh go back to something we discussed and work in a question from our friend Mike Dominguez um uh who submits this question via Twitter which I think is uh quite um profound and um important that we address it and I'll I'll kind of try and Tee It Up in the way that I have in a somewhat concrete setting so Mike asks can you elaborate on the idea that our Constitution doesn't Grant rights but instead recognizes those right you know so that you know Thomas Jefferson and others said we have certain unalienable rights that means they can't we couldn't give them up even if we wanted to and I'm a little bit troubled I don't want to say trouble but I I I sort of my radar my hair went up on the back of my neck a little bit when you pointed out that well if a state constitution has something in it says well there can be dry counties in this state or you know we we have some history of of prohibiting consumption or possession of alcohol then maybe that's okay and not protected by the Ninth Amendment well doesn't that really undermine the whole concept of of unenumerated Rights if it's really just contingent on has the government sufficiently clearly expressed its intent to infringe this right in some document like a constitution if so well then it goes out the window um and Mike's Point as I understand it is well but no aren't there isn't isn't that a weird concept of a right that it's sort of granted or withheld by the government at its you know sort of discretion uh versus the idea maybe there is an unenumerated um unalienable right to just put certain things inside your body and it doesn't really matter what the state has said you know or purported to say about claiming on the authority to to interdict that it's a lot to unpack I can see you nodding alongside I hope that you get it but let's let's talk about this you know do baby ninths amendments protect contingent rights or do they protect uh unalienable rights or could it be a mixture of both and what what uh sorry for the quick question what do you mean by contingent rights well I would say contingent right would be one like you described in conjunction with alcohol that yes you might have a right to possess and consume it but if the state has been sufficiently clear about abridging that right in a state constitution let's say purporting to authorize the establishment of dry counties where no alcohol is permitted then maybe you wouldn't have that right to me that's a contingent right versus an unalienable right is one the the government just simply has no power to take away sure so a state constitution could protect unreliable uninailienable rights and in fact there are many Provisions in state constitutions that do exactly that Steve calabresi has written about them and they're called lockian natural rights guarantees they usually say uninailienable rights um so often when state Constitutions are written they're protecting rights in all different ways um your description just then of uh unalienable right so I write that you can't give up and can't be regulated um is not what the baby what baby ninth amendments protect we'll just say what the Ninth Amendment language protects and that's because of how it's written so I apologize if if uh I'll get to that the question that our our uh was asked on Twitter in a moment but I apologize a bit that maybe I'm being a little positivist here that I'm talking about exactly what the text says and not just you know our natural rights damn it the government can't take away um but there's more than one way to think about those rights that are not granted by government I definitely agree with that but that we are trying to protect in some way so you could just say I have an uninailienable right and I don't care what you write in the Constitution you can't take that away from me that is a fine argument to make that I in many ways agree with um but probably it's not going to work that well in a court of law for a I'll just give that warning out there here and two when you're when when Constitutions are written they're obviously trying to protect rights in a way that's different than that I mean they're they're writing it out now when you get you'll learn a little bit a little bit in the in the book in the History Section I have in the book that when some of these Provisions were being written in state constitutional conventions and that the first one was written and was taken from the Ninth Amendment put in the state constitution in 1819 all the way till 1970 as the most recent one in Illinois when they were written some people would object and say we don't need this language the ninth amendment in here because everyone knows those that those other rights are protected right so so it's kind of like the argument where the Ninth Amendment itself uh we have you know speech religion we have these other ones we've listed but everyone knows the others are protected too and the response would be you know have you seen the government in action maybe we'd like uh you know a belt with this pair of suspenders they have a little bit more protection and so they put in this language of baby Ninth Amendment so then we have if we're talking about the baby Ninth Amendment just like if we're talking about the due process clause or whatever it is we need to worry about what it says these people spend a lot of time even though it was a long time ago worrying about every jot and Tittle of what it says so we look at what it says and it's talking about retained rights which brings in this whole idea of the social contract and um giving up some rights but retaining others so you could have an argument about uh you know a more kind of robust uh uh right about uh that that you can't give up be given up or regulated by government at all um but that I think would be a bit different angle to come at that issue than talking about uh these Provisions because um you could I guess you could slice up the rights that are retained and say there are these rights that you absolutely cannot infringe upon you know even if uh the public good requires it and then there are the other rights that you can um that I don't think that's what's going on there I think they're just talking about protecting our natural Liberty and our property rights and recognize that there's some give and take um because there's this whole idea of coming into society that's in the background okay well I want to give you time to sort of give us a closing argument but I'm going to end I've been throwing you some fastballs and I want to I want to throw a a slow pitch right over the fat part of the plate so you can take it out of the park and end on a note of confidence but it's also an important question that one of our our listeners has asked um and and there's a premise here that I think you and I will not accept so I'll just prep preview it that way how can the Ninth Amendment be considered an Etc Clause when at the time the amendment was ratified the authority of the Supreme Court to declare laws unconstitutional wasn't clear so Step Up take that one out of the park okay all right judicial review uh and this uh this is great because part of the part of my book that I add to um that I that I I had most fun with writing when the I put the actual book together is some of this early ideas about judicial review and how they then interacted with the US constitutions and then state constitutions so the there is a myth out there that I talk about that on that isn't really unthought of as a reality by serious Scholars issue or people who have uh researched these issues but general public on review versus Madison um actually the idea of judicial review goes to send in the town why is that because before the American Revolution there were in the British system no written constitutions so how could you go in the court and say well this law is unconstitutional um when there's no Constitution that you're talking about once Americans started writing constitutions whether it's the state constitution or then the U.S Constitution people started realizing well you're going to go in the court and you're going to have this higher law that's called the Constitution and then you're going to have these lower laws like statutes city ordinances what have you how do they interact and the judges would say well it's the higher law how can I enforce this lower law when the two contradict each other and there's examples from before the Constitutional Convention itself of state courts doing just that and when the Constitution was put together I mean Hamilton himself said in the Federalists that courts of law are going to a police that the what the Congress does because of what the Constitution says and so the ninth amendment was written with this backdrop in mind now what one thing I'll say to listeners is that even if you don't buy this even if you say yeah you know what the Ninth Amendment it's not about individual rights I I don't uh I don't think that unenumerated rights are protected by the Federal Constitution even if you believe that and I don't if you read my book I hope I convince you that in state courts in state constitutions when they took this language and put it in their own state constitutions years after the uh the the adoption of the ninth amendment that they do exactly that and so I could see some some fair-minded person coming away from this book saying yeah I'm still not sold on unenumerated rights in federal court but I think they are a real thing in the under state constitutions I know the figure the federal government's big bad does all kinds of things I get that but when you're talking about state and local legislation you have just as much a chance of having a law declared unconstitutional under your state constitution as you do Under the Federal Constitution and so if you're able to have your unenumerated rights protected um when it comes to local or federal local or state government um why not use that method instead of of using the the Federal Constitution and so I hope that people understand that that they take away from that and that in the future in State Court we have more protection of our unenumerated rights and we had a little bit of a technical issue when you began your answer to the question so let me just quickly try to summarize it and make sure that I got it right I believe we you take the position and I agree with that that the idea that somehow judicial review was invented out of whole cloth by Mar by the Supreme Court in Marbury versus Madison um in whatever that was 1805 or 1806 and wasn't a part of of either our system or the you know the Anglo system before that it's just a misconception correct exactly that that's absolutely right so judicial review of a higher law like the Constitution didn't really exist before the American Revolution because they didn't have a higher law in Britain they just had Parliament as Sovereign there were some ideas about this but it wasn't really foreign but when we started writing constitutions from the get-go state or federal it's kind of an obvious thing it's like if if someone else hadn't invented just judicial review then it would have been invented because it's it's uh pretty obvious that when you have this higher law and you have other laws that contradict it and you get in the court adjudicating them something's got to give yeah well that is all the time we have uh Anthony Sanders the book is baby ninth amendments how Americans embraced uh unenumerated rights and why it matters and it's been a pleasure speaking with you hold it up loud and proud um and people can get it on Amazon it's also tell us tell them where they can get it uh free as an ebook yeah you can get it on Amazon uh you can buy a a copy for yourself that's great but if you just want the ebook you can get it for free on Kindle you can also get it from University of Michigan press the publisher um as a free download best deal you'll get all day maybe all month great speaking with you Anthony foreign

Channel: The Cato Institute

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Id: TBa_HMY7G-o

Length: 62min 37sec (3757 seconds)

Published: Thu May 11 2023