websites and downloading child pornography. They also track perpetrators’ internet activity, and do whatever else the
latest technology enables them to do to
find the criminals wherever they reside
in cyberspace. Many of these avenues of
criminal investigation require warrants.
Some are so new and groundbreaking no
one’s quite sure how the courts will eventually rule. In fact, recently the Supreme
Court ruled that placing a GPS device on
a car to track a suspect required a warrant. 1 Such technological advances were
beyond the consideration of the Founding Fathers. But all of the above scenarios
have been shoehorned into the rights
covered by one or more of the other
amendments, and most such applications
make perfect sense. Thus, there’s no need
to pull them into the “penumbra” of nonenumerated rights covered by the Ninth
Amendment.
What exactly is a “penumbra”?
The Founding Fathers meant the Constitution to be a roadblock to overreaching government. They were fine with the
government extending its reach as long
as the People endorsed it by amending the
Constitution. Since the Constitution was
ratified—not including the Bill of Rights
(Amendments 1-10)—there have been
17 amendments. This is fine since the
amendment process built into the Constitution provides for due process. 2
Hundreds of proposed amendments
have been presented to Congress but
never made it out of committee. Six have
made it to the states for ratification but
never made it past that step. This is a
good thing. Sadly, nine men and women
on the Supreme Court who are accountable to no one have found a way around
this very important check and balance of
overreaching government. They invented
the legal term penumbra.
The most common sense definition of
the legal term penumbra I’ve found is in
the online Free Dictionary. “The rights
guaranteed by implication in a constitution or the implied powers of a rule.” 3 So,
if a right isn’t expressly listed in the Bill of
Rights, a judge can express it himself by
implication. No need to amend the Constitution to add something when a man
or woman wearing the black robe can
imply it. No need to face the risk of the
states not ratifying a proposed amendment by letting the people vote on it.
Indeed, there’s lots of risk to allowing an
amendment to be debated before such an
implication; what if the attempt fails? If it
were to fail, it would be much more diffi-
cult for the Court to get away with claim-
ing the right falls within the penumbra.
A better tactic for those wanting to make
the Constitution say something the ma-
jority opposes is to imply it first, and cir-
cumvent the built in checks and balances
of the amendment process.
“Rights” that make the Founding Fa-
thers turn over in their graves but Ameri-
cans seem to want anyway . . .
Following are the rights the courts
have used the Ninth Amendment, along
with the so-called penumbra surround-
ing other enumerated rights, to carve out
additional rights not otherwise named in
the Constitution.
a. Birth control
In Griswold v. Connecticut, 4 the wall that
had previously prevented the courts from
legislating rights not contemplated by the
Founding Fathers began to crack. The
appellant was a licensed physician who
counseled married couples on contraception. The State of Massachusetts had
a statute that made it a crime to not only
counsel the use of contraception for any
person, but to use “any drug, medicinal
article or instrument for the purpose of
preventing conception.” 5
The Court applied several constitu-
tional rights to reach its decision to strike
down the statute as unconstitutional,
not just the Ninth Amendment “catch-
all.” First and most obvious, the Court
observed that, “we are met with a wide
range of questions that implicate the Due
Process Clause of the Fourteenth Amend-
ment.” 6 Thus, although the original ques-
tion was an issue involving a state, not
federal, matter, the Court considered
the question due to its wide-sweeping
due process of law implications. Next, it
held the First Amendment relevant. The
law banned a doctor from advising his
patients. It also infringed on a married
couple’s freedom to engage in their rela-
tionship—associate—as they saw fit. 7
“The foregoing cases suggest that spe-
cific guarantees in the Bill of Rights have
penumbras, formed by emanations from
those guarantees that help give them life
and substance.” 8 The word is penumbra,
the definition…“guarantees that help give
them life and substance.” Huh? Sounds
like the enumerated guarantees are hav-
ing illegitimate children, and someone
has to take them into his home, and that
someone is probably wearing the black
robe of a judge. No wonder the Court
supports birth control! Never mind that
the concept of a penumbra of non-enu-
merated rights was first discussed in the
same court’s dissent, meaning it was ut-
tered by the losing side and had no legal
weight whatsoever. 9
Hence, the court found a “zone of
privacy created by several fundamental
constitutional guarantees.” 10 Specifically,
the government cannot prevent doctors
from advising patients on the very private decision to use birth control, nor
can it prevent any person from using
birth control. 11
b. Right to define the family unit any
way you choose
In Stanley v. Illinois, 12 the Court considered whether the government can
mandate certain types of families when
determining placement of a child with a
parent. The facts were that the mother
and father weren’t married. When the
biological mother died, she had custody
of the child. The father sued for custody,
but the applicable state statute prohibited placement with a parent who was
not married to the deceased custodial
parent. “The Illinois Supreme Court accepted the fact that Stanley’s own unfitness had not been established but rejected the equal protection claim, holding
that Stanley could properly be separated
from his children upon proof of the
single fact that he and the dead mother
had not been married. Stanley’s actual
fitness as a father was irrelevant.” 13 It
seems obvious to most that a two-parent
household is better than a single-parent
home. However, in this case the solution
was probably more detrimental than the
cure. The children became wards of the
www.TheOldSchoolhouse.com
Since the Constitution
was ratified—not
including the Bill of
Rights (Amendments
1-10)—there have been
17 amendments.
