Ninth Amendment has silent power

It's probably the most common frustration with lawyers: We're much too wordy. Legal documents drone on and on, taking a forest of paper to express what the average client sees as a simple matter. Attorneys answer that nearly each word has a lawsuit behind it, hence the inclusion. Lest these laborious lists be blamed on modern litigation, consider constitutional history.

Even then the framers knew the dangers in the old axiom, "expressio unius est exclusio alterius" - the express mention of one thing excludes all others. So they included the Ninth Amendment.

Constitution Week articles tend to focus on basic histories of its drafting and more popular amendments. Freedom of speech and the right to bear arms certainly stir the masses. The Ninth Amendment may never get the limelight, but it can pack a punch.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." - U.S. Constitution, Amendment IX

This (and the Tenth Amendment, reserving non-delegated powers to states) end to the Bill of Rights was the framers' insurance policy against the Latin axiom above. They wanted to ensure that by listing some rights, they weren't curtailing any they hadn't addressed. A constitution which lists and anticipates every right couldn't fit in a pocket size book. The framers were saying, "This isn't an exhaustive list of rights; it's an illustration."

History provides no hints of a more specific purpose. Supreme Court Justice Robert Jackson called this amendment "a mystery." It resulted from a disagreement between federalists (who didn't want the Bill of Rights) and anti-federalists (who did) about including the Bill of Rights in the Constitution. Courts have been divided over the Ninth's interpretation; some concluding specific rights may derive from "others retained," and others calling it simply an interpretive guide.

Individuals and courts have used the Ninth Amendment for a variety of arguments in support of rights such as abortion (allowed), unregistered machine guns (denied), and recreational marijuana use (denied, so far). In the last two centuries it has seen long, quiet periods without use, but the same ambiguous silence that makes it a less popular choice for legal argument may also keep it ripe for plucking.

"Saying nothing sometimes says the most." - Emily Dickinson

Sholeh Patrick is an attorney and a columnist for the Hagadone News Network. E-mail sholehjo@hotmail.com