I would hope that the ascent of a conservative majority on the Supreme Court, which the confirmation of Brett Kavanaugh as Justice would likely entail, would mark the end of "emanations from penumbras" as a creative basis for interpreting the United States Constitution, at least going forward.
This Sunday, July 29, is the 50th anniversary of the actual publication of Blessed Pope Paul VI's encyclical ''Humanae Vitae'' on the regulation of birth, and more specifically on the immorality of artificial birth control, though it was formally dated July 25, 1968, the feast, then as now, of St. James the Apostle. Pope Paul is himself scheduled to be canonized a saint in Rome this October 14. His controversial encyclical insisted on the intrinsic connection between what it called the unitive and the procreative meanings of human sexuality -- that sexual activity has a meaning and purpose intimately related to the transmission of human life, and thus that recreational sex, sex for pleasure apart from openness to children, was in some way inhuman and objectively sinful.
Coming as it did at the height of the sexual revolution of the late sixties, when all authority was viewed as suspect, and the then youthful Baby Boomers were celebrating sex, drugs and rock and roll, heedless of consequences, ''Humanae Vitae'' struck a nerve and provoked widespread dissent and disobedience. It took a lot of courage for Pope Paul VI to articulate and defend the Church's teaching in the face of ready access to the Pill, itself a recent contraceptive innovation. He turned out to be prophetic about the sad consequences that would ensue from disregarding this teaching: widespread marital infidelity and a lowering of moral standards, viewing women as mere instruments for the satisfaction of male sexual desire, public authority unhinged from moral law. Me Too, anyone?
But I want to draw attention to an amazing coincidence in our history, that a few years earlier, in 1965 to be exact, the U.S. Supreme Court had declared that Connecticut's law prohibiting the use of contraceptives violated the U.S. Constitution on grounds that the Fourteenth Amendment's guarantee of due process of law required states to refrain from impinging on privacy.
This was a remarkable turn in our constitutional history, for the requirement was said to be an implication of "emanations from penumbras" of specific protections of the Bill of Rights, things like free speech, or freedom from unreasonable searches and seizures, or freedom from compulsory self-incrimination, or (my favorite) the freedom from being forced to quarter soldiers in your house in time of peace (the Third Amendment).
On that basis, the Supreme Court said it was outside the power of a state to ban contraceptives, though the relation of condoms to, for example, housing soldiers was none too clear. Not to mind, because the "emanations from penumbras" operated as a smokescreen, disguising the fact that these judges were in fact reading their own policy preferences into the Constitution under the pretext of interpreting it. But because people liked the outcome and result, they didn't mind the dubious method. But ends do not justify means, as St. Paul had stated and the encyclical also explained.
And why wouldn't recreational drug use be included? Again, that really had to do with the policy preferences of the judges rather than any real constitutional principle. And so the Supreme Court used that privacy right, or liberty interest, as the basis for deciding that unmarried minors should have access to contraceptives, the same as married adults, that homosexual sodomy was at first not constitutionally protected, and later deemed constitutionally protected, and that the freedom was "broad enough to encompass a woman's decision to terminate her pregnancy," and thus make abortion a constitutional right in Roe v. Wade forty-five years ago.
Whatever the fate of these constitutional precedents under stare decisis, the presumption that the rules deciding cases should be retained, I would hope that the ascent of a conservative majority on the Supreme Court, which the confirmation of Brett Kavanaugh as Justice would likely entail, would mark the end of "emanations from penumbras" as a creative basis for interpreting the United States Constitution, at least going forward. The illegitimate game is up: no longer should unelected elites be able to impose their values on society, engage in social engineering and invalidate democratically enacted legislation, on the pretext of such an open-ended smokescreen.
- Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.