Monday, February 15, 2021

A Layman’s Guide to Penumbral Reasoning By John Green ( not actually written in the Constitution. )

For over 50 years, constitutional scholars, and Supreme Court justices in particular, have used “penumbral reasoning” as one means to explain rulings expanding the Constitution of the United States.  Law schools describe it as “reasoning by interpolation.”  To put that in graphic terms, if you’re drawing a graph on paper, reasoning by interpolation allows you to extend the line off of the paper.  I’m not a constitutional scholar, but I don’t think that’s necessary to see that this can lead to a very dark place.

In legal terms, when a justice says they’re using penumbral reasoning, they’re admitting that the next thing they say is not actually written in the Constitution.  They’re using it as an interpretive instrument to claim that if the Founders were alive today, “They would put what I’m about to rule in the Constitution.”

Penumbras have been debated in legal papers for many years.  But in 1965, Justice William O. Douglas used penumbral reasoning in the majority opinion of Griswold v. Connecticut to declare that a right to privacy exists in the Constitution -- even though it’s not written anywhere.  He then used this newly discovered “right” to find that a ban on contraceptives was therefore unconstitutional.  A right to privacy seems like a logical inclusion in the constitution.  But rather than five justices declaring it a right, why didn’t we add it to the Constitution with an amendment?  It couldn’t have been that difficult to get ¾ of the population to agree that they wanted privacy.  With an amendment, we could have avoided all the resulting controversy.

Instead, justices have been exploring the limits of penumbral logic ever since.  That’s how they “discovered” that a right to abortion is included in the Constitution.  They’ve become the test pilots, taking us for a ride while they “push the envelope” -- only we don’t get a parachute.

To understand it better, let’s take a look at what a penumbra is.  The dictionary definition of a penumbra is the lighter area around the edge of a shadow.  When a legal scholar uses it, they’re saying that they see something emanating from the shadows of the Constitution -- it’s there, even though it’s not written.  It’s a natural outgrowth of, or inherent in, something that is written.  Here’s the way I understand it: If you have a few drinks, squint your eyes, and look sideways, you can kinda sorta imagine what the Founders would write, even though they didn’t write it.  It’s perfectly straightforward.  The justices are saying that they can read the minds of political giants that have been dead for hundreds of years.  How humble of them. 

The Supreme Court decided that the Supreme Court can declare that the Constitution means something it doesn’t say -- without concurrence of the citizenry.  Isn’t that a bit like a king granting himself unlimited power over the serfs, and then saying it’s legal because the king gave himself the authority to write the rules?  What could possibly go wrong?

Maybe we can understand what could go wrong by looking at the application of penumbral reasoning to other legal venues.  How do you think a penumbral argument would go in a civil case?  Let me illustrate: You hire a builder to construct a new home for your family.  You enter into a contract with the builder to construct a single-family dwelling with three bedrooms.  But, by the time the home is completed, you’ve added another baby to the family.  You inform the builder that he’s in breach of the contract because you now need a four-bedroom home.  You file a lawsuit.  In court, you argue that the contract should have evolved with changing circumstances.  The requirement for a four-bedroom home was always there -- as a penumbra, emanating from the requirement for a single-family dwelling.  How do you think this lawsuit will turn out?

Penumbral reasoning is absurd for contract law, and it’s also absurd for constitutional law.  If the words don’t have concrete meanings, the documents they are written on become meaningless.  Just because an argument originated with a scholar doesn’t make it any less asinine.  It just proves that Ivy League credentials do not bestow wisdom.

Let’s look at what this type of interpretation has led to. It started innocuously enough.  The justices used it to grant us a constitutional right to privacy.  That doesn’t seem like a bad thing.  Who could argue with that?  However, it did put us on the proverbial “slippery slope.”  Now that the Supreme Court has granted itself the authority to “read between the lines” of the Constitution, they’ve started finding other stuff.  Now they’ve discovered that we have a constitutional right to contraceptionabortion, and same-sex marriage.  I’m not arguing that any of these things are good or bad.  I’m saying that they should have been debated by the citizenry, not nine Supreme Court justices.

What about the argument that the Constitution needs to evolve with the changing needs of our society?  Of course, it does.  But the use of penumbral arguments is an arrogation of power from the people to robed overlords.  It’s also a lazy man’s method of achieving constitutional changes without selling them to his fellow citizens.

The correct way to evolve the Constitution is through the amendment process.  Yes, it’s difficult and time consuming -- and that’s a feature, not a bug.  By requiring broad buy-in, public debate is driven and consensus is achieved -- or not.  With consensus, future controversy is minimized.

Is it possible that Roe v. Wade was not an example of the Constitution evolving with society, but rather of the Supreme Court dragging society towards their worldview?  How different would our debates about abortion be if ¾ of the citizenry had agreed on the legality of the practice in 1973?  If you answer, “But we would have never gotten it passed,” then you’ve just made my point. 

John Green is a political refugee from Minnesota, now residing in Star, Idaho. He is a retired engineer with over 40 years of experience in the areas of product development, quality assurance, organizational development, and corporate strategic planning. He can be reached at