Wednesday, October 07, 2009

Incorporation's Penumbra

By Mike Dorf

In my latest FindLaw column, I discuss the Supreme Court's cert grant in McDonald v. Chicago, which poses the question whether the Second Amendment right to bear arms--interpreted as an individual right in DC v. Heller--is incorporated against the states via the Fourteenth Amendment.  After explaining the history of the incorporation doctrine, I argue that for self-professed textualists like Justice Scalia, the doctrine should be problematic: It is hard to argue on textual grounds that the right to possess firearms is incorporated while the right to a civil jury trial is not; and it is equally hard to argue on textual grounds that the enumerated rights of the first eight amendments are (mostly) incorporated but that the unenumerated rights referenced in the Ninth Amendment are not.

Here I want to make another historical observation about the road to and from incorporation.  Judicial conservatives love to mock Justice William O. Douglas's opinion in Griswold v. Connecticut for its rather exotic suggestion that the right to contraception is constructed from the "penumbras" and "emanations" of the Bill of Rights.  These conservatives are right that this language sounds like the sort of thing that a 1960s stoner might say.  E.g., "Dude, the right to sex is like a penumbra or an emanation from the right to remain silent.  Far out."  What the critics of the Douglas opinion in Griswold typically fail to mention is the course of events that caused Douglas to write it that way.

In the years leading up to Griswold, Douglas formed an alliance with Hugo Black, who was, on the leading issues of the day, liberal.  But Black was a liberal whose experience of the pre-1937 Supreme Court led him to believe that judicial review should be cabined by clear texts.  For him, the notion of jot-for-jot incorporation of the Bill of Rights was attractive because, as I say in the FindLaw column, it appeared to constrain judicial discretion.  Black said that the 14th Amendment incorporated the first 8 amendments, nothing more and nothing less.  Douglas, who was, to say the least, not the most highly principled jurist, was happy to join Black's opinions favoring incorporation because they produced liberal results.

But when it came to decide Griswold, Douglas was boxed in.  Having joined the Black decisions saying the first eight amendments were the full measure of the 14th Amendment, he could not now say that the 14th Amendment also included unenumerated rights.  And thus he fudged: He recognized an unenumerated right to contraception, all the while pretending that he was simply reading the enumerated rights.  Hence, he located the right in penumbras and emanations rather than taking the much more straightforward route of saying that the Constitution recognizes unenumerated as well as enumerated rights.

Douglas does cite the 9th Amendment but only after beginning with the claim that "that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."  In substance the Douglas approach does not significantly differ from that of Justice Harlan, who concurred in the judgment but not the opinion.  Both Douglas and Harlan use the enumerated rights as a starting point for extrapolating the unenumerated ones.  But, as Harlan protests in his separate opinion, Douglas seems to say that "the Due Process Clause of the Fourteenth Amendment does not touch th[e] Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights."  In the ensuing years, Harlan's opinion has generally been treated as much more persuasive than Douglas's.

Thus, when conservatives (and even some liberals) ridicule the penumbras and emanations, they are not actually offering a criticism of a view that many self-respecting believers in unenumerated rights hold.  There may well be reasons why, despite the clear command of the 9th Amendment, judges should not recognize unenumerated rights, or should do so with great caution.  But the silliness of the terms penumbras and emanations does not count as such a reason.


egarber said...

Seems to me the clear path is sort of what you guys wrote in "On Reading". The Ninth tells us to generalize rights -- thus privacy is the generalized version of the 4th and 5th (at least).

egarber said...

Has Scalia written or spoken about incorporation generally? I'm guessing he's not opposed to it; otherwise, it's hard to see how he could have sided with the Texas v Johnson majority (if I have the wrong case, I mean the one about flag desecration).

Has he ever weighed in on the "jot-for-jot" approach vs. selectivity?

John Q. Barrett said...

Do you mean to be suggesting that Black was more sincerely anti-Lochnerian (as he understood it) than Douglas was? I think they (same generation, same Washington vantage point, with WOD being academic and doctrinally Court-savvy earlier than HLB) were equally appalled by the pre-'37 judging and determined never to become that/sensitive about being accused of doing that in their later judging years. In Griswold, WOD found what he regarded, in his Bill of Rights emanations from penumbras, as a way not to be a Due Process Clause Lochnerian. Harlan, not of the 1930s Washington generation, did not share the HLB & WOD concerns and thus proceeded more comfortably to find substantive rights in the Due Process Clauses. HLB, in his Griswold dissent, is casting a pox on both of them for being, in effect, McReynolds.

Neil H. Buchanan said...

Even if judicial conservatives think the specific words "penumbra" and "emanation" are sources of humor, their embrace of Alden v. Maine pretty much obliterates their claims to being appalled by the Court's finding rights outside the text.

egarber said...

Neil, is that the one where the court found citizens couldn't sue their own state in federal court via the 11th, even though it only specifies *other* states?

Michael C. Dorf said...

In response to JQB, let me say that I think there were 3 principled positions on incorporation and unenumerated rights:

1) The Frankfurter/Harlan position: The BoR is neither a ceiling nor a floor. Harlan interprets this position more generously than Frankfurter, no doubt because, as you observe w/r/t Black and Douglas, Frankfurter was a New Dealer who worried about Lochnerism while Harlan was not.

2) The Black position: The BoR is both a floor and a ceiling.

3) The Murphy/Rutledge position: The BoR is a floor but not a ceiling.

Douglas both joined Black opinions arguing that total incorporation was the way to constrain judicial discretion--crucially Adamson v. California--but then voted in Griswold for the Murphy/Rutledge position, even as he claimed he was simply doing what he had espoused all along.

Neil H. Buchanan said...

In response to egarber: No, Alden is where they threw off all pretense to the idea that sovereign immunity was based in the 11th Amd. and simply found it in a penumbra/emanation-like free-floating notion of "what the framers had to mean."

egarber said...

I just looked up what I was trying to remember. I think I meant the Kimel case.

I think Mike made the textual point I brought up in a Findlaw article a while back -- citing Kimel (where Stevens called that interpretation of the 11th "activist").

Neil H. Buchanan said...

egarber: That's right. In Kimel, they were still sticking with their story that s.i. was based on the 11th Amd. Alden was a breakthrough in that they simply stopped pretending.

Sam Rickless said...

My reading of WOD's Griswold opinion differs a little from yours, Michael. I think Harlan's criticism of Douglas (the one you quote) is mistaken. Douglas thinks that a statute's violating the core or penumbral rights protected by the first 8 amendments is *sufficient*, but not *necessary*, for the 14th amendment to apply to it. So if you think that the CT statute violates a penumbral right protected by one or more of the first 8 amendments, then you do not *need* to appeal to the 9th amendment, and thus you do not *need* to count the right to obtain contraceptives as an *unenumerated* right. I am sure that Douglas worried that it would be a hard sell to find that the *only* reason for protecting the right to obtain contraceptives derives from the 9th amendment. This explains his appeal to the penumbras of the 1st, 3rd, 4th, and 5th amendments.

I myself am happy to acknowledge the existence of penumbral rights that give the "core" rights of the first 8 amendments "life and substance". For example, it makes no sense to protect the right to speak if one does not also protect the right to disseminate. I take Douglas's point to be that protection of a penumbral right is needed to secure the *value* of protecting a core right. The right to speak is useless if the right to disseminate is violated.

The problem for me is that it is a real stretch to find that the core rights enumerated in the 1st, 3rd, 4th, and 5th amendments are valueless unless the right to obtain contraceptives is protected. So Douglas's argument doesn't work, but not because the language of "penumbras" and "emanations" is silly. It's not, I think. It just happens not to apply in this case.

Sam Rickless said...

Just wanted to say that I really liked the FindLaw post. So clear, so right. It strikes me that Scalia is not going to be able to avoid the question whether the right to keep and bear arms is fundamental. This is the test that the Court has used for such a long time to determine whether unenumerated rights are incorporated that. Junking the test would create complete havoc in the law. Perhaps Scalia and Thomas do not care much about havoc, but I think that Roberts and Kennedy do (and perhaps Alito too). So the decision will probably be based on the Roberts-Alito-Kennedy interpretation of the test of fundamentality. It would be interesting if they could tell us more than that the right must be "implicit in the concept of ordered liberty", which (quite frankly) isn't particularly informative.

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