A Very Spooky Halloween Post

There is a fifth dimension beyond that which is known to man. It is a dimension as vast as space and as timeless as infinity. It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man's fears and the summit of his knowledge. This is the dimension of imagination. It is an area which we call the [Penumbra.]

Come with me, dear readers, into the spookiest area of Constitutional Law. A mysterious place that strikes cold terror in the hearts of Conservatives. It is a land of shadows, and its icy tentacles are coming for you.

We call this place: the Penumbra.

(And by we, I mean Supreme Court Justices.)

Take my paw, and come with me back into the Dark Ages, a time called “The Sixties.”

The year is 1965. The place, Connecticut. (Cue scary music).

Connecticut had a law that stated “Any person who uses any drug, medicinal article or instrument for the purpose of prevengint conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.” Griswold v. Connecticut, 381 U.S. 479 (1965). It also had a law that stated “Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.” Id. In plain English, this means that in Connecticut (along with many other places at the time), not only was contraception illegal, but so was providing it, or educating about it. The head of Planned Parenthood, Estelle Griswold, managed to have a married couple and doctor prosecuted under the laws (I presume with their complicity), so as to challenge the statutes. Peter Charles Hoffer et al, The Supreme Court: An Essential History, 363, University Press of Kansas. Aided by the American Civil Liberties Union, they appealed the convictions all the way to the United States Supreme Court. Id.

The issue, as Justice William Douglas, found it, had nothing to do with the morality of contraception. In fact, he specifically stated that the Court did “not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” 381 U.S. 479. The Constitutional issue was the state's interference in the private relationship between a husband and wife, and between a doctor and patient. Id. Simply stated, the Court was being asked to decide if the State was unconstitutionally interferring in a private relationship.

Fair enough, but now I'll give myself a bath while you go and try to find the right to privacy in the Constitution. Take your time, I'm a very fastidious kitten.

No?

Don't feel bad, Justice Douglas couldn't either. Because it's not there. Well, not specifically, at least.

As you may recall from some of my prior posts, there is the letter of the Constitution, and then there is its spirit. (A shudder just went through Justice Scalia, and he doesn't know why).

Take this step by step with me and Justice Douglas. The Court had already decided, in two landmark education cases, that the First Amendment included rights not necessarily enumerated. In Pierce v. Society of Sisters, the Court had held that parents had a fundamental right to homeschool their children, and in Meyer v. Nebraska, the Court had held that children had the right to study German in a private school. Neither of those rights are specifically stated in the Constitution. But, Justice Douglas noted, “the State may not consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” Id. For example, the Freedom of Speech, as stated in the Constitution, provides for the “freedom of speech... [and] the press.” U.S. Const. Amend. I.  What good, Justice Douglas asked, is the freedom of speech and the press if it only includes “the right to utter or to print” but not “the right to distrubute the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach-- indeed the freedom of the entire university community”? Id.

The Constitution, he held, is essentially meaningless without and understanding of “peripheral rights” and one of those rights, Justice Douglas wrote, is that of privacy. Id.

So where is it? Well, Justice Douglas reiterated that there is a “right of association” inherent to the First Amendment. Id. There is an implied understanding of privacy in the Third Amndment, which prohibits the quartering of troops in private homes, (i.e. the State can't interfere in the privacy of your home by forcibly housing soldiers in it). Id. You're famliar with the Fifth Amenmdnet's Self-Incrimination Clause (i.e. “taking the fifth”)? Justice Douglas found there a “zone of privacy which government may not force [a citizen] to surrender to his detriment.” Id. The Fourth Amendment's prohibition against unreasonable search and seizure speaks to a right to privacy. Id.

In sum, Justice Douglas would like you to back off already! There's a right to privacy! It's in the Constitution.

But then he went and called the area in which such implied rights are found “the penumbra.” Id.

Sigh.

I'm just gonna say, if you're affirming the existence of a fundamental right, you might not want to say that it's found in an area that connotes shadows and murkiness.

Because here's what happened. Regardless of Justice Douglas's careful analysis of precedent and the underlying meaning of the Bill of Rights, critics latched on to the word “penumbra” as a sign that the Court had stopped even pretending to base its decisions in the Constitution and was making up a shadowy land that it could use to mean whatever its justices wanted it to mean.

It doesn't help that the line of cases following Griswold deal with reproductive rights, and thereby, morality. It is a rare group of scholars that really get heated up about judicial theory in the abstract. When you through in morality, that's when people really get heated up.

I'm not going down this road today. Bring me some cat nip (I had my first today! I'm six months old!), and Human Female a bottle of wine, and we'll tell you all about Roe v. Wade and Casey v. Planned Parenthood, and Bowers v. Hardwick, and Lawrence v. Texas. I could direct you to articles that I won't dignify with a link from The Purrdict that claim that the “penumbra” opened the door to legalized prostitution and marriage between humans and dogs (ick, right?).

We all enjoy a right to privacy (I've gotten some requests for posts about it, which will be coming up), and would most likely fight against laws taking it away. What some people don't like, however, is how that right sometimes protects what some deem immoral acts.

And that, dear readers, is the land of the penumbra. Now, I must go have some more nip, because Human Male and Human Female plan to dress me up in a Halloween costume about which they have been arguing for months. 


 They need a life.