IJ-Sanders

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.

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.

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.

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/