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Publication Date

3-2017

Document Type

Article

Abstract

Perhaps the greatest questions of modern constitutional law are "Does the Constitution protect unenumerated rights, and, if so, what are those rights?" The United States Supreme Court has repeatedly, yet haphazardly and often reluctantly, answered "yes" to the first question, and essentially "it depends" to the second.' The Court has proceeded with basically the same approach concerning the Constitution's unenumerated protections against both the federal government and the states. ...

This Article makes a small step toward demonstrating that at least most state constitutions protect unenumerated rights by focusing on Baby Ninth Amendments. Calabresi and Vickery recently demonstrated some of the unique and rich jurisprudence of Lockean Natural Rights Guarantees in their invaluable and outstanding article. This Article has a parallel focus, but with a slightly different approach. Similar to Calabresi and Vickery's article, the present one only discusses the period before the Civil War. However, the focus here is not on the jurisprudence of that period, although that is discussed, but on the actual adoption of Baby Ninths in state constitutions through constitutional conventions. Additionally, this Article differs from Calabresi and Vickery's in that its ultimate goal is aimed at the "original meaning" of state constitutions themselves, not the Fourteenth Amendment. ...

This Article begins in Part I with a review of the well-known story of the drafting and adoption of the Ninth and Tenth Amendments to the U.S. Constitution. This includes an outline of the various theories scholars have presented on the original meaning of the Ninth Amendment. In Part II, we move to how the Baby Ninths came to be, starting with the Baby Tenths and then leading to the invention of the Baby Ninths in Alabama and Maine in 1819. Part III then provides an overview of how states slowly, but surely, began adopting Baby Ninths in the following decades, gathering steam in the run-up to the Civil War. It first discusses which states adopted (or failed to adopt) Baby Ninths and when, and then focuses on state constitutional conventions where the delegates discussed the meaning and desirability of both Baby Ninths and Tenths. Part III concludes with an overview of the (thin) jurisprudence of Baby Ninths, such as it was, before the Civil War.

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