Fortieth Anniversary of the ‘Griswold’ Decision: A Legacy of Legal Disaster

Yesterday marked the fortieth anniversary of the U.S. Supreme Court’s decision in the case, Griswold v. Connecticut, striking down laws prohibiting the sale or use of contraceptives. The Griswold decision set the stage for the court’s disastrous 1973 abortion decision, Roe v. Wade. The most significant problem with the decision was its legal reasoning.
Writing for the majority, Justice William O. Douglas invented a new constitutional theory in his written opinion. He agreed that the Constitution makes no reference to contraceptives, but argued that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Penumbras formed by emanations? Is this legal reasoning or astronomy?
Mark R. Levin, author of Men in Black: How the Supreme Court is Destroying America, explains: “Don’t be embarrassed if you don’t know what emanations from penumbras are. Young lawyers across America had to pull out their dictionaries when reading Griswold for the first time. A penumbra is an astronomical term describing the partial shadow in an eclipse or the edge of a sunspot — and it is another way to describe something unclear or uncertain. ‘Emanation’ is a scientific term for gas made from radioactive decay — it also means ‘an emission.”” So, Justice Douglas found a right to privacy — and thus a constitutionally-protected right to contraceptives — in a penumbra from an emanation from the Fourteenth Amendment. The courts have been finding penumbras ever since, and constitutional interpretation has been turned into legal divination — the equivalent of legal palm reading. Justices determined to find new ‘rights’ within the Constitution simply invent a penumbra from an emanation and, presto, a new constitutional ‘right’ is the law of the land. June 7, 2005 marked four decades of legal disaster. Recovery will not come easily.
LINKS EMANATING FROM THE WEB: Text of the Griswold v. Connecticut decision; text of the Roe v. Wade decision; Mark R. Levin’s article, Death by Privacy, published in National Review .  Senate Miniority Leader Harry Reid [D-NV] issued a statement celebrating the decision.