The problem is that the entire theory of penumbral rights is a work-around, a contrivance to allow the Court to avoid revisiting a decision handed down long ago that worked to invalidate the 14th Amendment's "privileges or immunities" clause (The Slaughterhouse Cases, 1873).
20th Century Courts were impotent recognizing and defending unenumerated rights against state infringement because the only legal mechanisms available to them to remedy violations of any rights were "due process" and "equal protection". This frustrated the application of the 14th Amendment's protections -- even for enumerated rights -- because "due process" & "equal protection" demand a case-by-case, issue-by-issue airing of challenges to law -- this begat "selective incorporation", a piecemeal, practically clause by clause application of the Bill of Rights over the last nearly 100 years.
The Warren led SCOTUS wanted to advance civil rights in a wide, broad manner and their solution was "penumbral rights theory". This allowed them to reinvigorate a principle that the Court essentially killed, that the Bill of Rights merely serves as examples of the areas where government can not step. The foundational treatise for the theory of penumbral rights theory (Justice Harlan's dissent in Poe v Ulman) posited that the Bill of Rights embodied an unbreakable, unalterable "rational continuum" of liberty. The Court said this principle of liberty demands the recognition of unenumerated rights like privacy which then demands "particularly careful scrutiny of the state justifications for their abridgment" and the striking down of "arbitrary impositions and purposeless restraints". So the Warren Court said that those specific examples of enumerated rights (Amendments 1-8) have "penumbras" and "emanations" and innumerable liberty interests reside within those auras and between the words . . .
This is where it gets sticky.
Nobody who is a "Constitutionalist" or "Originalist" or "original intent" supporter can dispute that the general theme of "penumbral rights" conforms to the principle grounded in the 9th Amendment. While I admit it is clunky and less than optimal, (optimal would be the Court revisiting and overturning Slaughterhouse), for now, penumbral rights theory is an acceptable work around of Slaughterhouse frustrating the enforcement of all of our rights against "arbitrary impositions and purposeless restraints".
I argue that "conservative" opposition to Griswold and Roe is not really a constitutional argument because the denial of a "right to privacy", including personal autonomy and ultimately reproductive choice, is absurd. Of course a right to privacy would be included in any assessment of rights spoken of in the 9th Amendment and the full enforcement of that right demands government stay out of the bedroom and the doctor's office.
Those principles embodied in the 9th Amendment are troublesome for some groups on the left and the right. On the left, statist authoritarians are frustrated because their agenda demands the acceptance that rights flow from the government and the state can and must limit people and the choices they make for the good of society (add in a pinch of Bolshevist communitarianism for good measure). This is quite evident in the left's attacks on the right to arms.
On the right we see dogma governed social/cultural conservatives off the constitutional rails with their all-encompassing opposition to abortion / gay rights. Those social / cultural agendas pollute their constitutional thinking with the, "it's not in the Constitution, so it's not a right" or "where's that right in the Constitution?" legal arguments. This position is in opposition to the principles of conferred powers and retained rights and the concept that the Bill of Rights is not the exhaustive listing of the citizen's rights and thus, at complete odds with the principles underlying the 9th Amendment.
In their beliefs on the extent of government's powers over citizens, dogma governed social/cultural conservatives and Constitution ignoring leftists have much in common. Each demand government taking a proactive role in "regulating" what they consider, their fellow citizen's unacceptable behavior. That many dogma governed social/cultural conservatives cloak themselves in the claim that they are Originalists or Strict Constitutionalists disgusts me as much as the outright lies and misrepresentations of Constitution ignoring leftists. That's why I have really grown to hold deep disdain for dogma governed social/cultural conservatives. I hate being lumped in with them when the left condemns all conservatives for opposition to abortion and gay rights.
It would do the reasonable left some benefit to make a distinction between Constitution focused political conservatives like me and "dogma governed social/cultural conservatives" because on many political issues we are at deep philosophical odds.
I have come to the belief that the left are constitutional ignoramuses. Listening to some of the Democrat candidates for President and their proposals for the right to arms, it strikes me that they don't comprehend what they are proposing -- as it relates to the right to privacy (and by extension, abortion and other reproductive freedoms) . . . I would like to ask them, can a right like privacy that is deemed to exist in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights, be more cherished, more respected, more vital and more secure than a right that is actually enumerated in the Bill of Rights?
Their stupidity creates a quandary . . .
If they can be successful in cutting the right to arms out of the Bill of Rights, essentially removing a link in the "rational continuum" of liberty, then they are proving the originating treatise of penumbral rights theory, its legal foundation, is utter BS. It would be funny if leftist success in killing the right to arms is the legal argument that demands and justifies invalidating the recognition and enforcement of abortion and gay rights . . .
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Just for reference, here is Harlan's dissent as quoted in Casey v. Planned Parenthood:
"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:
'[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.'"
Casey v. Planned Parenthood, 505 U.S. 833, 848 (1992)
"Right to abortion" in the Constitution
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Originally Posted by jimnyc
