Penumbras, current society, and a written Constitution

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Official Washington is aflutter with the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court. And well it should be: Kagan, age 50, a veritable child in SCOTUS terms, could serve three to four decades on the nation’s highest bench before retiring, leaving a long legacy of rulings with profound implications for many facets of American life.

Today the American Left looks to the Supreme Court as the final fount of political truth, the last gasp for a “progressive” (i.e., unconstitutional) reading of the Constitution itself. After all, it is the Supreme Court that has found rights never imagined by those who drafted the document itself, that searches yearningly for pretexts upon which to base intellectually dishonest but politically sought rulings. In the words of Goodwin Liu, President Obama’s nominee to the Ninth Circuit Court of Appeals, “It’s necessary for judges in some areas of the law to give (the Constitution’s) phrases and … words meaning in the context of current society.”

To put it less euphemistically, Liu, like his fellow devotees of a “living” Constitution, believes a judge should be able to make words mean whatever they wish in order to achieve the ends they prefer.

This approach vitiates the need for any kind of written Constitution: If judges can find meanings in the perspicacious writings of men for whom such new meanings would be astonishing, we should simply abandon a written text and make law based on the extemporaneous whims of five Justices.

Had the Founders hidden secret meanings to the terms used in the Constitution, they would never have included a process whereby the document could be amended (the Fifth Amendment; in other words, why amend something you can simply reinterpret?) nor would they have approved the Tenth Amendment, which assures states of possessing all political authority not explicitly designated by the Constitution to the federal government.

Tellingly, the late Justice William O. Douglas jettisoned this approach and instead (in Griswold v. Connecticut) propounded a “right to privacy” with respect to chemical contraception in this remarkable sentence: “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees.”

Douglas had to appeal to the language of astronomy and physics in a fevered attempt to make his case: A penumbra is “the partial or imperfect shadow outside the complete shadow of an opaque body” – a “shadow of a shadow,” or something so vague as to be imperceptible. An “emanation” is “a gaseous product of radioactive disintegration.”

In other words, the activist judges of the Left (a) admit they can find no real basis for their attempts to legislate from the bench so (b) they discern rights within the “emanations of penumbras,” the cloudy outpourings of near-invisible shadows.

This is the judicial equivalent of inventing an imaginary friend. Were this school of interpretation not so gravely dangerous, it would be comical.

The role of the Supreme Court is not to make law by approving or disapproving the arguments that come before it based on the preferences of a majority of the individual justices, but rather to evaluate the constitutionality of a given matter. As Chief Justice Roberts argued in his confirmation hearing, the Supreme Court is like that thick-vested arbiter of balls and strikes, an umpire.

“Umpires don’t make the rules; they apply them,” said Roberts. “The role of an umpire andplays by the rules. But it is a limited role.”

The kind of judges envisioned by the Founders would not “find” new rights or prohibitions or duties in the clear written text provided to them to apply, the U.S. Constitution. They would simply address how that text should affect the outcome of whatever case came before them. In this, Chief Justice Roberts is the philosophical heir a very long line of judges who understood exactly the constitutional role of the
federal judiciary.

Put another way, Roberts was merely restating, “in the context of current society,” something George Washington wrote in his Farewell Address: “The Constitution … till changed by an explicit and authentic act of the whole people (i.e., unless amended, per Article Five) is sacredly obligatory upon all.”

“Obligatory upon all.” Do you agree with the General, Ms. Kagan? We’re eager to find out.

Rob Schwarzwalder, Sr. Vice President of the Family Research Council, has served as chief of staff to two Members of Congress and was a presidential appointee in the Administration of George W. Bush.