PENUMBRA THEORY

Writing for the Supreme Court in griswold v. connecticut (1965), Justice william o. douglas commented that "specific guarantees in the bill of rights have penumbras, formed by emanations from those guarantees that help give them life and substance." The occasion for this shadowy suggestion was the Court's decision holding unconstitutional the application to a birth control clinic of a state law forbidding the use of contraceptive devices, even by the married couples whom the clinic had aided. Although nothing in the Constitution specifically forbade such a law, Justice Douglas rested decision on a right of privacy founded in this "penumbra" theory. A number of constitutional guarantees created "zones of privacy." One such zone included the "right of association contained in the first amendment." Other protections of privacy were afforded by the third amendment's limitations on the quartering of troops, the fourth amendment's protections against unreasonable searches and seizures, and the Fifth Amendment's right against self-incrimination."The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees."

This "penumbra" theory, which has had no generative power of its own, is best understood as a last-ditch effort by Justice Douglas to avoid a confrontation with Justice hugo l. black over a doctrinal issue dear to Black's heart. In his famous dissent in Adamson v. California (1947), Black had derided "the natural-law-due-process formula" that allowed judges, with no warrant in the constitutional text, "to trespass, all too freely, on the legislative domain of the States as well as the Federal Government." Douglas had joined Black's Adamson dissent, and perhaps hoped that his Griswold opinion, by maintaining a formal tie to the specifics of the Bill of Rights, might persuade Black to come along. Black, of course, would have none of it: "I get nowhere in this case by talk about a constitutional 'right of privacy' as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."

The Court subsequently relocated its new right of privacy in the liberty protected by the due process clause of the fourteenth amendment, and no further "penumbras" have been seen in the land. Nonetheless, the Griswold decision has been an unusually influential precedent, not only for the Supreme Court's abortion decisions but also for the development of a generalized freedom of intimate association. Not every penumbra darkens the road ahead.

Kenneth L. Karst
(1986)

Bibliography

Kauper, Paul G. 1965 Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case. Michigan Law Review 64:235–282.