Introduction.
In Constitutional law, there are two types of personal rights granted by the U.S. Constitution: enumerated rights and unspecified rights. Analysis of the first type is straightforward and obvious; analysis of the second type is more convoluted and obscure.
- Rights Specifically Enumerated in the Bill of Rights.
Freedom of speech, freedom of religion, the right to remain silent when accused of a crime, and, of course, the right to bear arms. These rights are explicitly enumerated within the Bill of Rights.
Analyzing these rights is relatively straightforward. Deciding when they apply and with what limitations presents more of a challenge, but identifying the right is reasonably obvious.
- Rights NOT Specifically Enumerated in the Bill of Rights.
The second type of personal right granted by the U.S. Constitution includes rights not specifically stated in the Bill of Rights. Fleshing out these rights is where things have gotten so volatile over the years.
These unstated rights are still protected by the Constitution for two reasons:
- First, because these rights are deeply rooted in U.S. history and tradition, and
- Second, because these rights exist “within the penumbra” of the stated rights.
We will analyze each of these reasons in order.
- Rights Deeply Rooted in U.S. History and Tradition.
Examples of this type of right include the right to work, the right to marry, and the right to raise one’s children.
The right to marry is nowhere specifically named in the U.S. Constitution; however, the Supreme Court has found that the right to marry is deeply rooted in U.S. history and tradition.
The Court holds, therefore, that the right to marry is a protected right under the U.S. Constitution.
- Rights within “the Penumbra” of the Rights Specified in the Bill of Rights.
The second reason the U.S. Supreme Court has been willing to protect rights not specified in the Bill of Rights is because, to use the Court’s language, these unstated rights fall within “the penumbra” of those rights that are specified in the Bill of Rights.
The term penumbra is notoriously ambiguous. It refers to the fringe or the shadow of something. These rights then, while not at the core of the Bill of Rights, are floating around the core, they are within the shadow of the specified rights, they are very near to the enumerated rights.
The result of this analysis has been as follows: although these rights are not specifically stated in the Bill of Rights, they are logically required by what is stated in the Bill of Rights.
Said another way, what is stated in the Bill of Rights implies or assumes the existence of these rights.
This approach to Constitutional Law has done two things:
- First, as we have seen, it has identified unnamed rights that are protected by the U.S. Constitution, and
- Second, it has assembled those rights under a heading known as “substantive due process.”
- A Brief History of the Penumbra Analysis.
As we have seen, “the penumbra” is a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These unenumerated rights can only be identified through a process of “reasoning-by-interpolation.”
The term penumbra first appeared in an opinion published by the U.S. Supreme Court in 1916; however, it was not until 1965 that the term became the focus of so much scholarly debate and social unrest. It was that year in which the U.S. Supreme Court handed down its opinion in Griswold v. Connecticut.
- The Penumbra Analysis in Action (Substantive Due Process at Work).
In Griswold, Justice William O. Douglas for the first time, identified the “right to privacy” as a right protected by the U.S. Constitution.
In reaching this conclusion, Douglas explained that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Douglas analyzed several rights guaranteed by the Bill of Rights and logically concluded that “the right to privacy” was essential to all of them.
Here is a sampling of his reasoning in which Douglas argues that the Court can infer a right to privacy by looking at “zones of privacy” protected by the First, Third, Fourth, Fifth, and Ninth Amendments:
Various guarantees [found within the Bill of Rights] create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
- The Right to Privacy – Griswold set the Precedent.
This newly revealed “right to privacy” identified by Justice Douglas in 1965 is what allowed the Court to strike down the Connecticut statute outlawing contraceptives in that case. However, the “right to privacy” revealed in 1965 provided the foundation for the protection of numerous rights in the years that followed:
- The right to obtain birth control for unmarried couples, 1972 (the right was applied to married couples in Griswold in 1965).
- The right to obtain an abortion for any woman, 1973.
- The right to obtain contraception for juveniles at least 16 years of age, 1977.
- The right to engage in homosexual relations, 2003.
- The right to same-sex marriage, 2015.
- The Liberal/Progressive Backdrop to the Right to Privacy.
Identifying constitutional rights NOT specifically named in the Constitution is a relatively new phenomenon.
As we have seen, the Court only came out and did it openly in 1965, a time of social unrest, progressive social views, and rapid social change.
And when it was done, it was done by Justice William Orville Douglas, a man known for his strong progressive views.
William O. Douglas is often cited as the U.S. Supreme Court’s most liberal justice ever.
In 1975, Time magazine called Douglas “the most doctrinaire and committed civil libertarian ever to sit on the court.”
- What Are We Seeing Now?
Within the last decade or so, there has been a conservative backlash against the perceived advances made by “liberals” within our society. As I have stated in other posts, “conservatives” do what that name implies – they conserve/preserve the status quo. They want to do things the way things have always been done.
Because protecting rights not specifically named in the Constitution is a new thing, conservatives are, by definition, against it.
There has been longstanding conservative opposition to the penumbra approach to constitutional rights within the arena of constitutional law. As I have noted, one result of the penumbra approach to constitutional rights has been to assemble those rights, and the protection of those rights, under a heading known as “substantive due process.”
Conservatives are opposed to the penumbra approach. They generally hold the so-called right to substantive due process in disdain. They often refer to attempts to protect substantive due process rights as “judicial activism.”
Conservatives argue that when the Court identifies a right not specifically enumerated in the Constitution and then seeks to protect that right, it is engaging in legislation rather than judicial interpretation—it is MAKING new law rather than INTERPRETING existing law.
- The Dobbs Decision.
In reversing the holding in Roe v. Wade, the Dobbs Court declares that it is “ending adherence to Roe’s abuse of judicial authority.” The Court notes:
For the first 185 years after the adoption of the Constitution, each State was permitted to address [the abortion] issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.
Again, finding and protecting a right not specifically named in the Constitution is, for a conservative, tantamount to the Court creating law. The creation of law by any Court is, in the words of Justice Alito, an “abuse of judicial authority.”
- Where Do We Go from Here?
As we have seen, the constitutional right to terminate a pregnancy in 1973 arose straight out of the right to purchase and use contraception, which was revealed in 1965.
This progression ultimately led in 2015 to the right for two persons of the same sex to marry one another.
The Dobbs Court has now reversed Roe v. Wade. In doing so, it has ruled specifically that the so-called “right to privacy” does NOT protect a woman’s right to obtain an abortion.
The questions now on the table include:
- Does the right to privacy still protect the right of a married couple to obtain contraception?
- What about an unmarried couple?
- What about a 16-year-old?
- Does the right to privacy still protect the right of a person to engage in homosexual relations or are the Sodomy Laws returning?
- What about the right to same-sex marriages?
- The Road Ahead According to the Majority.
The majority in Dobbs, led by Justice Alito, specifically holds that the right to privacy does not extend to a woman seeking an abortion. However, the majority asserts that nothing it does “cast[s] doubt on precedents that do not concern abortion.”
In other words, according to Justice Alito, eliminating the underlying right to privacy ONLY affects the derivative right to an abortion.
The ruling in Dobbs, according to Justice Alito, does NOT topple the other derivative rights mentioned above. Many legal scholars have already expressed extreme doubt at such an assessment.
- The Road Ahead According to Justice Clarence Thomas.
Justice Thomas rejects the limits Justice Alito places on the Dobbs ruling. Thomas is quite candid: because the foundational right has been disallowed, the entire structure of rights built thereon must also fall.
In his concurring opinion, Justice Thomas argues that the Court should go further in future cases, reconsidering other past Supreme Court cases that granted rights based on “substantive due process” (i.e., judicial activism).
According to Justice Thomas, this would include:
- The right to contraception granted in Griswold v. Connecticut.
- The right to same-sex marriage granted in Obergefell v. Hodges.
- The right to engage in homosexual activities granted in Lawrence v. Texas (a case that banned laws against sodomy).
Thomas wrote, “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
In other words, according to Justice Thomas, anywhere the Court has protected a right not specifically enumerated in the Constitution, it has
- Created new law—the Court has become a legislative body.
- Exceeded its authority—the Court has engaged in judicial activism.
- Made “demonstrably erroneous” decisions—the Court has sought to protect the right to substantive due process.
According to Justice Thomas, each of those instances must now be corrected by this new, conservative Court.
Conclusion.
For further discussion of substantive due process/judicial activism, see https://youtu.be/-vysq8ImXHM and https://youtu.be/eE10EIA9E4Q.
These videos are put out by The Federalist Society for Law and Public Policy Studies, an American legal organization of conservative and libertarian corporate lobbyists that advocates for a textualist and originalist interpretation of the United States Constitution.
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