Wednesday, May 14, 2008

Penumbras, emanations, and a living Constitution

Recently Republican Presidential candidate John McCain delivered a speech in which he outlined his stand on the role of the judiciary in America:

Quoting Senator McCain:

"'(P)enumbras', 'emanations,' and other airy constructs the Court has employed over the years (are) poor substitutes for clear and rigorous constitutional reasoning... I will not seek the confidence of the American people in my nominees until my own confidence is complete -- until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution."

It's not uncommon to come across disparaging remarks like McCain's about "penumbras" and "emanations." Oh, and you'll also find harsh words about the third element in this alleged triumvirate of judicial activism, the so-called "living Constitution," of which this column is an example:

From Mr. Goldberg's essay:

"If you recall, the 'living Constitution' is the notion that the meaning of the Constitution changes over time. One day nine justices simply wake up, and when they arrive at work that day, they discover that the words in the document they studied their entire adult lives suddenly mean something new and fresh."

When I hear people direct jeers towards "penumbras," "emanations," and "a living Constitution," I always wonder if the speakers understand that the cases that were the sources of these concepts are viewed today by nearly everybody, of all political stripes, as having been decided correctly, regardless of any interpretive theories expressed within the opinions.

Let's start with the penumbras and emanations. Yes, that comes from a case which often is cited as raw judicial activism--Griswold v. Connecticut 381 U.S. 479 (1965). Robert Bork wrote a famous law review article in which he moaned that that Griswold was "an unprincipled decision" that "fails every test of neutrality" ("Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); also reprinted in Interpreting the Constitution: The Debate Over Original Intent, Rakove, ed. 1990).

But you know what the issue was in Griswold? It was whether or not Connecticut could forbid the sale of contraceptives, even to married couples. I don't think McCain or anybody else today wants to argue that the Supreme Court was wrong to tell Connecticut such a ban was unacceptable.

And let's look closer at the sentence in Justice Douglas's opinion that led to such uncommonly bizarre words as "emanations" and "penumbras" being on the lips of constitutional interpreters:

"(S)pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." (Griswold at 484).

I read that to mean that when it comes to the first ten amendments to the Constitution, a broad interpretation of individual liberty is warranted. Anybody really object to that? No one, I presume, would argue that the First Amendment guarantee of free speech does not apply to blogs since computers weren't around in 1789. The general expansive view of personal liberty, so central to the philosophy of the United States, dictates that computer communication is constitutionally protected just as if it was made with a goose quill and parchment.

Speaking of goose quills, let's move to the living Constitution. If you think the idea of a state telling husband and wife they can't buy birth control is insane, what do you think of what happened in the late nineteenth century when many birds in this country were hunted almost to extinction? Kind of stupid of those nineteenth century Americans to let the passenger pigeon vanish and numbers of other bird species dwindle so dangerously, wasn't it?

Well that relates directly to the concept of a living Constitution. The classic statement outlining this is from Missouri v. Holland, 252 U.S. 416 (1920). Here is what Oliver Wendell Holmes wrote in the majority opinion:

(W)hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago. (Id. at 433, see also Gompers v. United States, 233 U.S. 604, 610 (1914).

In Missouri v. Holland the Court upheld the federal government's power to make an international treaty for the preservation of migratory birds; Missouri argued unsuccessfully that the Tenth Amendment's guarantee of powers reserved to the states prohibited this. In effect, what Missouri said was, "We don't care if a bird hatches in Canada and winters in Louisiana, or that for this reason people in Canada and Louisiana or anywhere else have an interest in the fowl; when it migrates over our state we have exclusive say on whether that bird can be shot or not." (The whole story is very interestingly told in Lofgren, "Missouri v. Holland in Historical Perspective," 1975 Supreme Court Review, pp. 77-122.) Fortunately for the birds, the Court disagreed.

Holmes's opinion has been criticized for having "ambiguities" ( White, The Constitution and the New Deal, 2000, p. 58) and for being "cryptic" (Golove, "Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power," 98 Mich. L. R. 1075 (2000), p. 1257). Well what I take from the Justice's words is this: when the Constitution was written in 1787, the treaty power was considered proper for war, peace, and trade; not for protection of birds. So if the Constitution was interpreted not "in the light of our whole experience, but merely in that of what was said a hundred years ago," obviously the federal government would have no business making conservation treaties.

But of course, times change. The first wildlife treaty--dealing with fishing regulations in the Rhine River--was made between Germany and Switzerland in 1869 (Gobel & Freyfogle, Wildlife Law: Cases and Materials, 2002, p. 675). By the time of Missouri v. Holland, the U.S. was no stranger itself to international wildlife treaties, having negotiated ones concerning Great Lakes fishing and fur seal hunting in the North Pacific (see generally Dorsey, The Dawn of Conservation Diplomacy: U.S.--Canadian Wildlife Protection Treaties in the Progressive Era, 1998).

So a "living" Constitution as outlined by Holmes did no more than recognize that the treaty power had come to embrace more subjects by 1920 than it had in 1787. Sure, it would have been unthinkable in 1800 to see a treaty protecting migratory birds, but it also was unthinkable to almost everyone in 1800 that passenger pigeons could ever vanish from the earth. I'm all for interpeting the Constitution carefully, maybe even "strictly" but I don't see that concept as being inconsistent with what Holmes was talking about. I prefer a living Constitution over a lot of dead birds.

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