Today in Supreme Court History

Today in Supreme Court History: November 1, 1961


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. You obviously believe Griswold was wrongly decided. Just own up and say so.

    1. Yeah, man, the Court’s karma ran over Blackman’s dogma.

      Penumbras and emanations. Deep, man.

  2. “Wow, man, can’t you just *hear* the penumbras?”

    1. I think Griswold was rightly decided but wrongly reasoned. No need for emanations and penumbras. Sexual autonomy and privacy are one of the privileges and immunities of the Fourteenth Amendment. Period, end of case.

      1. Serious question despite the silliness of thinking the 14th Amendment has anything to do with sexual autonomy; what do you make of Justice Thomas’ goal of using the P&I clause for incorporation, a route long abandoned by the Court?

        1. ” has anything to do with sexual autonomy”

          A basic wrong of slavery, cited at the time, was lack of sexual autonomy. Control of sexual autonomy in some form, at the very least a right to marry (traditionally the route to legally have sex), is quite logically a part of the 14th Amendment.

          1. Okay, that’s fair retort, considering that one of the reasons that plantation gentlemen has so many mulattoes running about was why they defended slavery so vociferously. I honestly didn’t think of that. If, however, this “sexual autonomy” was limited to the intended purpose of the amendment, *again*, putting the former slaves so they had the same rights as other citizens, then I would stand entirely corrected. So your point is kinda rhetorical.

            However, both you and I know, the “sexual autonomy” that the 14th Amendment is being used for today is not the “sexual autonomy” that perhaps was a shadow up on the ratifiers mind when the amendment was adopted.

            1. Kalak, I disagree with your premise. The issue is not the “intended purpose” of the amendment. The issue is whether today, in 2020, most people would consider sexual autonomy to be one of the privileges and immunities of a free society. And the answer to that question is yes.

              And I agree with Justice Thomas that P&I can be used for incorporation but most of the time I think it’s unnecessary since there are other routes to achieve the same result. What do you think?

              1. And your living constitutionalism premise is silly, but hey, that’s where we are today. It *feels* right to you, so never mind the text of the amendment, or the original public meaning, or even the debate surrounding it where “sexual autonomy” would be like aliens visiting to the legislators.

                As for P&I, I think that was the route that incorporation should have taken place, because that’s the actual text put into place in the amendment to overturn Dred Scott. But a retrograde SCOTUS read it out of the amendment. It *felt* right to them at the time, after all, not to have blacks equal to whites. Anyway, as in McDonald (2010) where they incorporated the 2nd Amendment, except for Thomas, nobody wanted to overturn that earlier caselaw that incorporated a right via the due process clause.

                1. What’s silly is the idea that people long dead are the final word on contemporary issues. We don’t take medical advice from Lincoln’s doctors (who quite likely killed him) so why should we take constitutional advice from people who lived during the same period?

                  1. Your fundamental and frankly foolish mistake is thinking that morality advances like scientific progress. It doesn’t.

                    1. Oh, but it does. We no longer have slavery, child labor, child brides, child brides sold by their fathers to their husbands’ families, ten years old as the age of sexual consent, burning of heretics and witches, or breaking on the wheel as a punishment for crime, all because morality has advanced from the days when those things used to happen.

                      But assume I’m wrong about all that and morality really doesn’t advance. My question still remains as to why people long dead should have the final word on contemporary issues they likely never thought about.

                    2. You and Pinker are wrong as pikers. As our technology advances, so does our capacity for evil. Technological advancement has allowed for such that the whole human race could destroy all civilization and perhaps wipe itself out, and it nearly has a couple times. Oh, and you’re wrong about those things you say we don’t have…we still have them in abundance, we just call them different names.

                      There is a fundamental issue with your position. First, you inherited the civilization built by your ancestors, and have a duty (inter-generational justice) to leave it better than you found it. You live in a time of such material abundance that it is unfathomable just a few centuries ago. Be very careful with what changes you make because, by in large, the system works.

                      I didn’t say that the dead have the final word. No one ever has. The Constitution has an amendment process after all. Those
                      pretty smart overall Founders put it in place. But it takes a LOT of buy-in, and that slows down the “progress” you’d like to make. Easier to just convince SCOTUS of something. I pick up what you’re laying down.

                    3. If by “me and Pinker” you think I agree with him that moral progress only moves in one direction, you are mistaken. But that’s a separate question from whether moral progress exists. I’d far rather live under 21st century American morality than I would under 13th century morality pretty much anywhere in the world. So would you.

                      The system works for some people, not so well for others. As a progressive, I’m always going to be asking if we could do better. And I disagree with you that it’s an either/or choice between material abundance and treating people better than we often do.

                      And you’re right that we do still have at least some of those things on my list under different names. But the fact that their proponents have to resort to calling them different names is a sign of progress.

                    4. 21st Century morality is not as advanced as one would think. In many cases, it’s worse. Note the advances made by IT companies in the daily control and influencing of our lives. The “social credit” system of control already in place in China is a model for growing manipulation by nefarious powers. Even you can imagine conservatives imposing a “malum prohibitum” on alot of your progressive beliefs if they had their way. And depending on the who, and the where, and compared to what, 13th Century morality might be preferable. I

                      I’m not saying we all should expect equal outcomes, but the rate of absolute poverty in this world went from, in just one data point, from 60% or so in the world in the 80s to in the 40%s now, declining every year. Compare standards of living. You live better than a Roman Emperor, and have better medical care at your beck and call than the Robber Barons of the 19th Century.

                    5. p.s. And again, stop saying what my arguments are, because you keep doing it wrongly. I’m not saying there is a trade-off between “equality and material abundance”….I’m saying the system works to provide human flourishing and that we had better be careful making changes.


                    6. My reading that you had an either/or approach came from your talking about material gains without also talking about the need to treat people better than we do. (You misquoted me when you said either/or between material gains and equality; I did not use the word equality for a reason.)

                      That said, I do believe that it’s possible to have both material gains and also to treat people better than we do. As a progressive, I look for ways to do both. And your point that not all moral movement has been in a positive direction, while true, misses my original point that moral movement happens. Remember, we are having this conversation because of your original comment that morality does not advance like scientific progress. It does; just not always in the right direction. Neither does science.

                      However, despite the fits and bumps along the way, both science and morality, over time, tend to advance in ways that leave us better off than we were. As awful as Nazi Germany and the Soviet Union were, we still ended the 20th century with more of the world living in freedom than we began it. Despite science’s occasional missteps into stuff like eugenics, it corrects itself. And that’s the key: Not that the path is straight and smooth, but that correction happens.

                      I’m not going to defend China, but it, too, will pass.

                    7. Well, at least we can stop talking past each other I suppose. And as a conservative, let me say to you “as a progressive,” that the allegory of Chesterton’s Fence should be of particular concern to you. Secondly, that material human flourishing we have, is what even allows for equality. When people are just trying to survive, they don’t have time for, and don’t care to hear about, particularistic philosophic dialectics. It’s not a coincidence that the Enlightenment coincides with the Industrial Revolution and both have their origin in the same space/culture.

                      China, as a society, and as a political system characterized by almost zero individual rights and high state control with minimal feedback loops from it’s populace, has been on this planet, since at a minimum about 1,000 B.C….it ain’t going anywhere unless Earth is destroyed. They are, in many ways, more “evolutionary fit” for domination of this planet. You had better support the West, rather than undermining it, even if you want your progressive changes.

              2. The issue is whether today, in 2020, most people would consider sexual autonomy to be one of the privileges and immunities of a free society. And the answer to that question is yes.

                Then there shouldn’t be any issue enshrining that right–that “contemporary public meaning”–in a law or constitutional amendment, no? Why get an unelected body of jurists to issue an edict?

                1. Deontologist, I don’t know how much actual experience you have getting legislation passed, but I can assure you that public opinion has little to do with it.

      2. So it’s only for citizens?

        That doesn’t seem right. Ninth Amendment, anyone?

        1. I would’t say that “sexual autonomy”, to the extent it’s actually a constitutional right, would be a P&I.

          “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

          Liberty in some respects, equal protection in others, but not P&I.

          I don’t think the 9th gets you to Griswold, because it only protects unenumerated traditional rights, it’s not a judicial blank check to just create new rights out of thin air. You’d have to establish that the right in question would have been regarded as a right around the time of the 9th amendment’s ratification.

          I think the 1st amendment gets you partway there, the “counseling” part, though. But I don’t see a constitutional route to the right to a prescription, and if there is one, I don’t see it grounded in “marital privacy”; A medical clinic isn’t your bedroom.

          1. I don’t think the 9th gets you to Griswold, because it only protects unenumerated traditional rights

            Says who? And where is the list of these “traditional rights?” And why isn’t marital privacy on it?

            it’s not a judicial blank check to just create new rights out of thin air.

            But it is a blank check to declare some rights “traditional” and others not. More originalist “history.”

      3. I think Griswold was rightly decided but wrongly reasoned. No need for emanations and penumbras.

        Right. Thankfully the Court has ignored the reasoning of the Griswold opinion and gave this case a firmer doctrinal footing. Unfortunately, Chief Justice Warren assigned this opinion to the dumbest Justice on the Court, with predictable results.

      4. Did those who enacted the 14th Amendment think so?

        I agree with those who suggest that a constitutional right to privacy which encompasses the right to rubbers is inherent in the constitution, whether by umbras, penumbras or “privileges and immunities of the Fourteenth Amendment. ” All I can say is “hold on” becasue everything old is new again.

  3. Wow. Your date is not even the court case itself, but the opening of a Planned Parenthood clinic? Maybe for Roe v. Wade, you could try to find out the date of Norma McCorvey’s impregnation.

    1. On the 1 year anniversary of his “this date in the supreme court” series, he admitted there were a number of dates he could find nothing the Supreme Court did anything meaningful on, so he moved to birthdays or other events. And at some point even that failed for a few dozen dates. I assume this was one of them.

    2. What is wrong with stating a date in history that started a series of events that I am sure even those who founded that particular Planned Parenthood could have ever predicted?

      1. Nothing wrong with any of this series . . . if the goal was a shitty job.

  4. Cruikshank does it the best—it simply states everyone knows Americans have a RKBA but it has nothing to do with the 2A. Everyone knows Americans have a right to privacy and it has nothing to do with the BoR.

    1. “Cruikshank does it the best—it simply states everyone knows Americans have a RKBA but it has nothing to do with the 2A.”

      ?? It says that the 2A can’t be infringed by Congress.

      1. Or, it says that the 2A says that the RKBA can’t be infringed by Congress.

        1. Correct, the 2A is a federalism provision. Here is Cruikshank with respect to RKBA though:

          “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

  5. I am fine with penumbras securing more or newer rights, unelucidated, held by The People.

    I am not fine with penumbras finding new powers for the government to control things. We have a deliberately laborious process to stop the government from growing at its own whim, called amendment.

    1. The Necessary and Proper Clause as well as multiple enforcement clauses in amendments provide a penumbra that provide congressional power to enforce enumerated powers.

  6. Justice Brennan’s concurrence in Lamont v. Postmaster General, decided about the time of Griswold says it better than Douglas did (and Douglas’ reasoning never really had staying power):

    “It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.”

    1. So, the umbras and penumbras of the 1st, as incorporated in the 14th, “protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.”

      Jeses, gnats and motes.

  7. This is why Blackman was assigned to teach a course on the political history of the Constitution, as opposed to a course on Constitutional Law.

  8. I’m pretty sure the drafters of the 14th Amendment never thought it protects the right to buggery.

    1. I’m pretty sure it doesn’t matter.

    2. I’m pretty sure the drafters of the 14th never thought it protected the right to own assault weapons (auto or semi-auto) or the right to transfer weapons without reasonable government safeguards.

    3. Indeed, There is very little doubt that the enactors of the 14th amendment never anticipated that the 2d amendment would be thus incorporated.

  9. Are these umbrae and penumbrae the habitat of the shadow docket?

  10. I see the penumbra, but where are the emanations from the penumbra?

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