Today in Supreme Court History

Today in Supreme Court History: November 1, 1961

|The Volokh Conspiracy |

11/1/1961: Planned Parenthood League of Connecticut opens center in New Haven, CT.

"Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." An "emanation" refers to a ray of light. During a lunar eclipse, the "umbra" refers to the darkest part of the shadow formed when the Earth orbits between the sun and the moon. The "penumbra" refers to the lighter part of the shadow, where some of the "emanations" from the sun are visible.

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  1. I’m fine with penumbras increasing personal rights. Unenumerated rights are not just acknowledged but important in Constitutional first principles. Zeroth principles, actually. Even if the right was not imagined originally.

    I’m not fine with penumbras increasing the power of government sans amendment. That is the opposite of first principles, which is government is deliberately and consciously, with supermajority approval, given new powers to pass laws. The People created a way to expand government power because this is a dangerous game, letting government do so at its own whim with the facetious argument “we won the election so vox populi and all that…”

    1. Douglas, who was one of the dumbest justices in American history, delivered a typically dumb opinion in Griswold. Whatever one says about unenumerated rights, they aren’t the same as penumbras (as you point out) and indeed you really don’t want an important right to depend on whether you can find some strained analogy to the Third Amendment or not.

      But luckily, the Court went on to just ignored Douglas (they all knew he was an imbecile) and fundamental rights jurisprudence these days looks at the importance of the right, tradition, and precedent, which is how it should work.

  2. Granted that the posted schematic depicting penumbra was intended to be metaphorical, I can’t pry my mind away from how dreadfully inaccurate the penumbral area of the earth’s shadow is depicted.
    This image correctly depicts a penumbra.

  3. In 2008 the Second Amendment sprouted a huge penumbra.

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