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.