Protecting Our Forgotten Rights

[Geee]

Real Clear Policy

Robbing a bank is a crime everywhere. But in some places and times you could become a criminal just by growing vegetables, feeding the homeless, playing poker or working without a government-mandated license.

African immigrant Tedy Okech risked arrest when she started working as a hair braider. She learned the craft in her youth by practicing on her mother and sisters. When she settled in Idaho in 2005, she found neighbors willing to pay for her skills. Soon she had a thriving side gig, which supplemented her income as a part-time insurance agent.

 

Everyone was happy except the cosmetology police, who mandated she take hundreds of hours of school and earn an occupational license. Rather than comply, Okech filed a constitutional lawsuit, prompting Idaho lawmakers to pass licensing reforms in 2022. My public interest law firm, the Institute for Justice, represented her.

The case highlights the importance of unenumerated rights — the ones not mentioned anywhere in the Constitution. A complete list of things people may do without government permission would fill volumes. Even then, certain rights might slip through the cracks, such as the right to braid hair.

Rather than risk omissions, the framers added the Ninth Amendment to the Bill of Rights as an etcetera clause, saving gallons of ink. Using simple language, it expands the Constitution to guarantee not just enumerated rights, but “others retained by the people.” Words with similar effect, but applied to the states, were then added after the Civil War, protecting Americans’ “privileges or immunities.”