A penumbra is normally understood as a partial or imperfect shadow surrounding a complete shadow cast by a solid body, but it has taken on a different meaning in U.S. constitutional law. Justice Oliver Wendell Holmes referred to a penumbra of the Fourth and Fifth Amendments in his 1928 dissent in the case of Olmstead v. U.S, 277 U.S. 438 (1928). The concept of penumbras extending from some of the provisions of the Bill of Rights was given its place in the canon of constitutional law in the majority decision of Justice William Douglas in Griswold v. Connecticut, 391 U.S. 145 (1965).
The Court had grappled with the meaning of due process in Amendment Fourteen since 1873, when it first decided the Slaughterhouse Cases, 83 U.S. 36 (1873). Various formulae had been proposed to capture precisely what was meant by the statement ‘‘nor shall any state deprive a person of life, liberty or property without due process of law.’’ The proper interpretation was complicated by the use of the exact same language with reference to the national government in Amendment Five. In his dissent in Hurtado v. California, 110 U.S. 516 (1884), Justice John Marshall Harlan, Sr. had argued that the due process clause in Amendment Four referred to all of the provisions in the first eight amendments or a system of total incorporation. Justice Benjamin Cardozo had proposed in Palko v. Connecticut, 302 U.S. 319 (1937) that due process referred to those portions of the first eight amendments to the Constitution that ‘‘were fundamental of a scheme of ordered liberty and justice.’’ Application of Cardozo’s formula has been labeled ‘‘selective incorporation’’ and permitted inclusion of only those truly important rights enumerated in the Bill of Rights.
When Douglas approached his opinion in Griswold, neither of those tests would apply to intrusions into the intimacies of marriage, specifically the decision to use contraceptive devices. He proposed that ‘‘specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.’’ To buttress his argument, Justice Douglas noted that the Court had found the right to educate one’s children as one chooses in Pierce v. Society of Sisters (268 U.S. 510, 1925), a right to study the German language in Meyer v. State of Nebraska (262 U.S. 390, 1923), a right to association and privacy of those associations in NAACP v. Alabama (357 U.S. 44, 1958), and a right of belief in West Virginia Board of Education v. Barnette (319 U.S. 624, 1943).
Those earlier decisions led Justice Douglas to the conclusion penumbras for other parts of the first eight amendments created a right to privacy. The right of association, derived from Amendment One, implies a zone of privacy, as does the provision in Amendment Three against quartering soldiers in homes during peacetime. Amendment Four guarantees that one’s person, house, papers, and effects are safe from unlawful searches and seizures and thus created a zone of privacy, as did the guarantee in Amendment Five against self-incrimination. To complete the argument, Justice Douglas relied on Amendment Nine, which provides that ‘‘the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.’’ Those guarantees, taken together, protected the marriage relationship, which lies within the zone of privacy created by these various rights.
Justice Douglas concluded that the Connecticut law forbidding the use of contraceptives by married couples was unconstitutional. Nonetheless, his formulation did not carry the full weight of the Court; five justices concurred in the result, but not with the reasoning in the majority opinion, and two others dissented. That left the value of the penumbras argument somewhat in question, but the term and its related meaning have passed into our understanding of constitutional law. The concept that enumerated rights in the first eight amendments are not the only ones encompassed by due process in Amendment Four has come to be known as the theory of total incorporation plus. Since no single theory of incorporation beyond a flexible case-by-case ‘‘fairness’’ approach has yet won the backing of a majority Court, the concept of penumbras emanating from the enumerated rights remains one viable theory.
MARY L. VOLCANSEK
Cases and Statutes Cited