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.