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.

Comments

[Dan Schiavetta]

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

[Cal Cetín]

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

Penumbras and emanations. Deep, man.

[Cal Cetín]

"Wow, man, can't you just *hear* the penumbras?"

[Krychek_2]

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.

[bernard11]

So it's only for citizens?

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

[Brett Bellmore]

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.

[bernard11]

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."

[Dilan Esper]

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.

[StellaLink]

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.

[Hendo]

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.

[Krayt]

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.

[Jimmy the Dane]

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?

[Rev. Arthur L. Kirkland]

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

[Sebastian Cremmington]

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.

[TwelveInchPianist]

"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.

[TwelveInchPianist]

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

[Sebastian Cremmington]

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.”

[Krayt]

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.

[Joe_JP]

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

[Joe_JP]

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."

[StellaLink]

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.

[QuantumBoxCat]

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.

[Jimmy the Dane]

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

[bernard11]

I'm pretty sure it doesn't matter.

[StellaLink]

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.

[StellaLink]

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

[great Unknown]

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

[jubulent]

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

[Joe_JP]

" 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.

[Krychek_2]

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?

[Deontologist]

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?

[Krychek_2]

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.

[Krychek_2]

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?

[Krychek_2]

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.

[Krychek_2]

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.

[Krychek_2]

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.