Saturday, October 21, 2006

Such a beautiful penumbra

Editor's note: This post was initially written as a series of newspaper columns during and immediately after the confirmation hearings of US Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito. I flatter myself to believe it holds up well in retrospect, and continues to provide important information on the much-ballyhood issue of "constitutional constructionist" theory as well as the much-despised label "judicial activist."

According to the Oxford Dictionary and Thesaurus, a "penumbra" is "the partially shaded outer part of a shadow." In legal terms, it has come to mean the fringe area of implied rights surrounding defined rights. Within this penumbra of Constitutional rights exists today’s most controversial right of all; the right to privacy.

According to the Legal Information Institute Web site at, "The personal autonomy dimension of the right of privacy has been overwhelmingly developed in cases dealing with reproductive rights ... The Supreme Court first recognized an independent right of privacy within the 'penumbra' of the Bill of Rights in Griswold v. Connecticut in 1965. In this case, a right of marital privacy was invoked to void a law prohibiting contraception."

Although lots of Righties would like to pretend otherwise, in authoring the Griswold opinion, Justice William O. Douglas clearly expressed his reluctance in encouraging the high court to engage in judicial activism.

"We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions," he wrote. But Douglas also clearly believed the court was obligated to declare the anti-contraception Connecticut law unconstitutional. His next sentence explains why the Griswold opinion, and by logical extension, subsequent opinions based in the right to privacy, is consistent with constitutional law.

"This [anti-contraception] law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation," wrote Douglas.

According to the Legal Information Institute, "Later cases expanded upon this fundamental right, and in Roe v. Wade in 1973 the right of privacy was firmly established under the due process clause of the 14th Amendment. The court classified this right as fundamental, and thus required any governmental infringement to be justified by a compelling state interest. Roe held that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability [the stage of development in which the fetus is able to respire outside the womb]. Before viability, it was held, the mother's liberty of personal privacy limits state interference due to the lack of a compelling state interest."

To those who seek to overturn Roe (including Norma Covey, the woman whose desire to have an abortion in 1973 brought the case to the attention of the high court), the right to privacy, since it is never explicitly mentioned in the Bill of Rights, is legal fiction. Many doctrinaire conservatives want it to disappear. One can easily sympathize with them; abortion destroys millions of human lives each year. And Justice Douglas was rather well known for his propensity to identify constitutional rights where none had been noticed previously.

But we who call ourselves Libertarian Conservatives get very nervous whenever this "created" right is challenged.

Why? Because the Constitution also fails to mention the principle of innocence until proven guilt, the right to be married, the right to travel, the rights to life, liberty and the pursuit of happiness, the right to vote and the essential democratic principle of "no taxation without representation."

Douglas wrote about similar implied rights in the Griswold opinion, noting that if only explicit rights were real, a lot of liberties we take for granted would cease to exist.

"The association of people is not mentioned in the Constitution nor in the Bill of Rights," he wrote. "The right to educate a child in a school of the parents' choice - whether public or private or parochial - is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights."

To me, that doesn't sound so terribly liberal, and it certainly does not sound like the opinion of a judicial activist.

Finally, it should be noted that the right to privacy exists in the penumbra around not one, but several constitutional amendments and the liberties they protect. Those include due process and equal protection under the law as well as the right to peaceably assemble with whomever we choose for any legal reason, the right to not have religious beliefs endorsed by the state and the right to be protected against unreasonable search and seizure.

Are we willing to minimize and restrict all those rights just because they imply that one's own home (or, in the case of a pregnant woman seeking an elective abortion, one's own body) is one's castle?

In the context of future hearings on any Supreme Court nominee, I believe penumbral rights should be discussed extensively. Every American should know who thinks government should have broader latitude to invade the privacy of law-abiding citizens, to what extent ... and toward what ends.


When the confirmation hearings of Chief Justice John Roberts and Associate Justice Samuel Alito were going on, there was some discussion of schools of constitutional jurisprudence. To my way of thinking, that discussion didn’t go on either long enough or deeply enough.

Here's why: President Bush, during his two campaigns and many times afterwards, has often publicly expressed his desire to nominate “constitutional constructionists.” On the face of it, that sounded pretty good to this Libertarian Conservative. That good feeling faded as I did my research. I discovered that the term "constitutional constructionist" has no single definition. As a matter of actual fact, the term can mean pretty much anything.


An Internet syllabus for a college Justice 401 course at informed me that there were three main schools of constructionism; Original Intent, Textualism and Precedent. The syllabus defines "Original Intent, aka Original History," as a method based in the "intended meanings of [the Constitution's] words." Original Intent judges believe the Framers carefully considered and debated each word "precisely to produce neutral principles of law." The strengths of Original Intent are consistency and the preservation of rights for all time.

Critics of that flavor of constructionism, according to the syllabus, contend that "it can be easily used to disguise ideological ends, that the framers were not of one mind and [that] historical records are lost."

In regard to the alleged loss of historical records, I find myself at a loss: I was pretty sure copies of The Federalist Papers were widely published in 1789 and have been available ever since ... Oh well, live and learn.

On the 2005 court, the syllabus stated, "the leading proponents of original intent are Justice Stevens and to a lesser extent, Justice Ginsburg."

Another school of constructionism, "Textualism, aka Literalism - the Plain Words approach, [relies upon the] ordinary meanings of words." Justice Scalia and the late Chief Justice Rehnquist are named as its chief proponents. To them, "Congress shall make no law ... abridging the freedom of speech, or of the press" meant exactly that. The idea behind Textualism is to produce "value-free jurisprudence," although we LibCons have a lot of trouble with some of the value-rich decisions written by Scalia on issues involving sex and/or religion.

Under the "Precedent" school of constructionism (otherwise called the "stare decisis" or "let the decision stand" approach), the court looks at its own previous decisions for wisdom and direction. Its leading proponents were former Justice O'Connor and former Chief Justice Rehnquist. Its perceived weakness is hidebound support for outmoded doctrines.

But carefully adhering to precedent does not make reversals impossible; in some cases, it makes them mandatory.

For instance, the court carefully followed precedent in Brown vs. the Topeka Board of Education, the 1954 ruling which overturned Plessy vs. Ferguson. Plessy was the 19th century "separate but equal" ruling underpinning legal racial segregation. Looking at evidence presented by plaintiffs and using the precedent approach, the court found separate schools to be inherently unequal, invalidating the conditional crux of Plessy.

Thus did the stare decisis-based Brown decision adhere not only to precedent but also to common sense and common human decency.

The "living Constitution" schools: moral relativism by another name

The schools of judicial thought president George W. Bush abhors are those which seek to treat the Constitution as "a living document," adjustable via current conventional wisdom on social and political issues.

Chief among those methods is "structuralism" which the syllabus says makes courts "more concerned with remedy-making than rule-making ... in other words, the more judges justify their decisions on grounds that they are good for society ... the more divorced they are from any ethical decision-making ... "

Those types of pseudo-jurisprudence look at law as a tool historically employed by the wealthy, white, male or other despised classes (usually ethnic or religious in nature) to keep society's salt-of-the-earth plebeians down and themselves ascendant. The mission of structualist jurists is not to end the injustice so much as to turn the tables on the despised class for the benefit of its perceived victims.

Thus, Hitler justified his persecution of Jews and political dissidents by claiming they had victimized Germans for generations. Stalin said likewise of the wealthy peasant kulak farmers of the U.S.S.R.

In both cases, Nazis and Marxists used a doctrine of remediation of imagined historical wrongs to justify the looting of wealth created by the despised classes. Structuralists are the true judicial activists. They cheerfully use the courts to get what they can't get at the ballot box. Liberals employ judicial activism to effect sweeping social change; conservatives use it to enforce severe doctrines of regressive social policy. When a conservative justice decides the Establishment Clause of the 1st Amendment only forbids creation of a formal state church, he/she is acting as a structuralist who believes religion, even when government-endorsed, is good for people.

Ditto a liberal judge who decides, in a case involving race or gender, that it's his/her job to guarantee equality of economic outcome rather than to merely uphold constitutional guarantees of due process and equality before the law. Both sides engage in rampant judicial activism while taking to task the other side for doing the exact same thing in its pursuit of a different agenda.

Were God indeed just, She would bring back to life James Madison and Alexander Hamilton just long enough to put paid to this pernicious threat to our essential liberties by Conventional Wisdom Lefties and Righties alike ...

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