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Conservative Hypocrisy on Penumbral Reasoning

One of the arguments we often hear from conservatives is that whenever the courts protect a right not explicitly listed in the Constitution, they are engaging in “judicial activism” and “creating a right out of thin air.” They get particularly upset about Griswold v Connecticut, the ruling that overturned state laws banning the use of contraception, because Justice William O. Douglas based that ruling on “penumbras.”

So what is a penumbra? In everyday usage, a penumbra is a space of partial illumination between shadows. But in a legal context, a penumbra is a right that is “guaranteed by implication” — that is, that is implied by, but not explicitly listed in, the text of the constitution. In Griswold, Justice Douglas said that the state’s ban on contraception “violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights.” Douglas cited numerous previous rulings where the court had protected an unenumerated right, like the right of free association, because not doing so would clearly undermine the ability of individuals to exercise rights that were explicitly protected (in the case of the right of association, the right to peaceable assembly and free speech). And he argues that a right to privacy is clearly implied by several provisions of the Bill of Rights:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Fourth and Fifth Amendments were described in Boyd v. United States as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” * We recently referred in Mapp v. Ohio to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” …

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

This is a perfectly coherent argument, of course, but for conservative legal scholars it is tantamount to pulling a right out of one’s rectum. Robert Bork, for instance, has claimed that Douglas “made up a right of privacy that’s attached to nothing.” But as Justice Douglas pointed out in his ruling, there is a long history of the court using penumbral reasoning to protect rights that are not explicitly listed in the Constitution — and conservatives did and do support many of those rulings.

There are lots of cases based on penumbral reasoning that conservatives agree with completely, and many rights recognized by the courts based on such reasoning that they would never question and in fact support strongly. For instance, the right to send one’s children to a private school. There is no such right mentioned anywhere in the Constitution, yet find a conservative who objects to the penumbral reasoning in Pierce v Society of Sisters. You will find none (nor should you, it’s a solid decision). But it uses precisely the sort of reasoning they claim to object to in cases like Griswold.

Glenn Reynolds, the infamous Instapundit and a law professor, wrote a very good article in the University of Pennsylvania Law Review in 1992 where he detailed many of the cases of unenumerated rights being protected on the basis of penumbral reasoning that conservatives universally accept. He concludes:

Recent years have seen considerable criticism and hostility regarding efforts of both courts and commentators to derive constitutional rights from sources other than explicit constitutional language. Nearly all of that criticism has emanated from those generally characterized as “right wing” or “conservative,” and it concerns case in which the outcome is generally regarded as “left wing” or “liberal.”

One might imagine that the unidirectional nature of this criticism stems from a similar tendency in the way the Constitution is interpreted, with the left relying more on extratextual sources of authority and loose interpretations of constitutional language, and the right rejecting these methods in favor of strict reliance on explicit textual language and original understanding. Interestingly, however, this turns out not to be the case. Upon even a cursory examination, it becomes apparent that judges and scholars on the right have been as willing as those on the left to rely on reasoning and authority that are not explicit in the language of the Constitution to reach ends consistent with their desires. Nevertheless, uses of what I call “penumbral reasoning” to obtain “right wing” results have not generated the kind of criticism from advocates of “strict * construction” and “original intent” theory that has appeared when the results have been otherwise.

There’s a reason for this: Their argument simply can’t be applied consistently, nor do they even try. Just like when conservatives criticize judges for “judicial activism,” the criticism of penumbras is not a serious argument, it’s just a catchphrase that means “I don’t like this ruling.” It’s a case of special pleading. And it should provoke only derision and laughter.

Comments

  1. DaveL says

    I don’t see how penumbral reasoning can be avoided without rendering the explicit guarantees of the constitution useless in practice. Penumbral reasoning is the underpinning of the principle that what the government is forbidden to do directly, it may not accomplish by semantics and word games.

  2. brucecoppola says

    #3: If I’d been drinking coffee when I read that, you would have owed my employer a keyboard.

  3. slc1 says

    Robert Bork, for instance, has claimed that Douglas “made up a right of privacy that’s attached to nothing.”

    For any readers of this blog living in swing states who are still hesitant to vote for Obama, I would point out that Bork the dork is Rmoney’s point man on judicial appointments.

  4. says

    Penumbral rights make me think of playing Sudoku. I use the numbers I know to make a logical choice about the numbers I don’t know, to extrapolate, ultimately to a complete block of numbers (if I do it right)

    What these people seem to be arguing is that because that number wasn’t there at the start, I’m simply pulling numbers out of my ass.

  5. Ben P says

    Well, Bork doesn’t think that substantive due process exists at all. Assuming he hasn’t changed substantially, his that due process as enshrined in the constitution is solely a procedural safeguard.

    That is, with exceptions set out by other specific amendments, the government can deprive you of whatever freedom it desires so long as it has gone through the proper procedure.

    Griswold, Roe and some of the follow ups talk about Penumbras but also eventually settle on a substantive due process theory. That rights which are not specifically enumerated can be captured under the intent of the others because laws might unconstitutionally take away life, liberty etc in an unfair way.

  6. says

    theschwa “My favorite is the right to party. (But you have to fight for it.)”
    And don’t forget John v USA, which carved out the vaunted “Saturday night” exception to the previously all-week prohibition on fighting.

  7. says

    Those conservative arguments may not be consistent, but their ultimate reasoning certainly is. They support or criticize whatever decisions bolster white male Christian privilege, and whatever tools of social control have utility to further the goal.

  8. says

    IMO this kind of talk by conservatives belies their claims to being freedom-loving.

    After all, if you were genuinely dedicated to expanding freedoms & liberty, wouldn’t it stand to reason that you’d want to expand, rather than restrict, the explicit & implicit set of rights that citizens have?

  9. Ben P says

    IMO this kind of talk by conservatives belies their claims to being freedom-loving.

    After all, if you were genuinely dedicated to expanding freedoms & liberty, wouldn’t it stand to reason that you’d want to expand, rather than restrict, the explicit & implicit set of rights that citizens have?

    Well, they say they’re freedom loving, but they mean a different thing by it than you do. You have to get inside their heads a little bit to figure it out.

    Bork, particularly post-confirmation Bork seems to believe in a theological or perhaps theocratic source for law. His reasoning goes like this.

    Assume that god created man. Because of this you jump to the line in the declaration of independence men are “endowed by their creator” with “inalienable rights.”

    He believes that “rights” endowed by god could not contravene god’s will, therefore any claim for an exercise of rights that is contrary to “god’s will” is invalid. i.e. there is no right to activity that would violate god’s will.

    Therefore, your “freedoms” are the freedoms to act as god allows. Freedoms beyond that don’t really exist.

    or something like that.

  10. fastlane says

    All that conservative rhetoric (I refuse to call it reasoning) ignores the 9th and 10th amendments.

    You don’t really need to call on precedent for penumbra justification, it’s right there in the 9th amendment.

  11. says

    Modusoperandi wrote:

    And don’t forget John v USA, which carved out the vaunted “Saturday night” exception to the previously all-week prohibition on fighting.

    You win.

  12. acroyear says

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    End of discussion? Really. it comes down to that. The rights listed are not all the rights that exist, and the extension of that is that it should be the burden of the state to defend why a right must be revoked, not the burden of the individual to defend why it must be asserted.

    Does that mean the Supreme Court can ‘invent’ a right out of whole cloth?

    Technically, yes, because it is asserting that the right was always there, even if previous courts and governments had limited it before now.

  13. says

    fastlane “All that conservative rhetoric (I refuse to call it reasoning) ignores the 9th and 10th amendments.”
    Oh, please! Everybody knows that the 9th is imaginary and the 10th only applies when the federal government tries to give healthcare to poor people.

    Ed Brayton “You win.”
    Obviously.

  14. says

    acroyear-

    The standard conservative position on the 9th amendment is simply bizarre. Justice Scalia admits that unenumerated rights exist, but that this does not mean that judges have any authority for protecting them (like most of his judicial opinions, though, he applies this inconsistently). But this is simply incoherent. The whole reason the 9th amendment exists is because many of the founders feared, rightly, that if they gave a list of rights to be protected, future governments would presume that they have the authority to violate them at will. If the 9th amendment does not confer a specific authority for the federal courts to protect unenumerated rights, then all the 9th amendment would mean is that there are all these other rights that we know the people should have only exist as long as the legislature continues to respect them — and the moment they stop, the right goes away. But the entire purpose of the Bill of Rights was to prevent legislative majorities from violating individual rights. It makes the 9th amendment meaningless.

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