> Finding new constitutional rules in “emanations from penumbras” seems extremely over that line
There's a difference between "finding new constitutional rules," on the one hand, versus recognizing the logical implications of existing rules, on the other.
Mocking "emanations from penumbras" seems to hint at hostility to the Ninth Amendment's explicit rule that not every right and liberty must be explicitly spelled out in the Constitution.
For non-lawyer readers, the "emanations" quote is from Griswold v. Connecticut, recognizing a constitutionally-based privacy right to use contraception. The complete quote is:
<quote>
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.
The right of association contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'
The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.
The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
> There's a difference between "finding new constitutional rules," on the one hand, versus recognizing the logical implications of existing rules, on the other.
A sweeping right to kill fetuses is not logically implied from a right to be secure against warrantless searches. Many legal systems have the latter protection, but the US is an aberration in interpreting it to create some right to bodily autonomy.
> Mocking "emanations from penumbras" seems to hint at hostility to the Ninth Amendment's explicit rule that not every right and liberty must be explicitly spelled out in the Constitution.
The Ninth Amendment is just a savings clause. It cannot support conjuring new rights into existence by spring boarding off enumerated ones. Put differently, the bill of rights isn’t a set of legal principles which can be invoked as the building blocks to divine previously non-existent rights to override democracy.
The quoted portion of Griswold is unpersuasive in the extreme. I’d call up and yell at any associate that handed me anything like that. People would be up in arms if the Court used similarly vacuous reasoning to, for example, divine a “right” that was economic or regulatory in nature.
There's a difference between "finding new constitutional rules," on the one hand, versus recognizing the logical implications of existing rules, on the other.
Mocking "emanations from penumbras" seems to hint at hostility to the Ninth Amendment's explicit rule that not every right and liberty must be explicitly spelled out in the Constitution.
For non-lawyer readers, the "emanations" quote is from Griswold v. Connecticut, recognizing a constitutionally-based privacy right to use contraception. The complete quote is:
<quote>
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.
The right of association contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'
The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.
The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
</quote>
https://scholar.google.com/scholar_case?case=122769221450000... at 484 (cleaned up, extra paragraphing added).