Emanations and Penumbras

93px-Justice_William_O_DouglasOne of the most famous/infamous passages in Supreme Court history is:

“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.”

Now I’ve always wondered where Justice Douglas got this idea for Griswold v. Connecticut.  Then I read Springer v. Philippine Islands, 277 U.S. 189 (1928), an opinion by Justice Sutherland. Holmes dissented, and here is how he started his dissent:

“The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. Property must not be taken without compensation, but with the help of a phrase (the police power), some property may be taken or destroyed for public use without paying for it, if you do not take too much.  When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on.”

Note that Holmes is using penumbra in a different way from Douglas.  He is arguing against using these to infer a general right.  The penumbras are exceptions that build some flexibility into the Constitution.  Still, this could be the source of Douglas’s language.  (This may be something that everyone familiar with Griswold already knows, but I’d never come across this Holmes dissent before.)


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1 Response

  1. Joe says:

    That’s an interesting quote though the word “penumbra” was used several times over the years (the addition of “emanations” is too much of a good thing):


    For instance, in his dissent in Olmstead v. U.S., Holmes references the “penumbra of the Fourth and Fifth Amendments.”

    Brennan used the same general idea in a more down to earth way shortly before Griswold:

    “It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.”