"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
Penumbra: from Latin paene almost + umbra shadow: This is the word used to describe the sliver of light which can still be seen around a solar eclipse, the region of shadow around a sunspot, or the fading edge of one color in the rainbow as it changes to the next.
Emanations: like a "vibe" or a "radiation." This is the word used to describe the origination of the world by descending radiations from the Godhead through intermediate stages to matter. One might say "Emanations" are the mists of creation.
In other words... Justice Douglas reached into the "radiations" of the Bill of Rights to find a shadow that was suggested by previous cases to help create a right to privacy.
Roe v. Wade is based on smoke and mirrors. Wisps of whispers of rights which a line of cases suggest may exist somewhere in the bill of rights.
I should state at this point that this is not about Abortion. This is about the Supreme Court reaching out into space to find the ink with which they may rewrite the constitution.
Justice White in a later case (Bowers v. Hardwick) explained why the court should not endeavor to find new fundamental rights imbedded in the Due Process Clause. "The court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."
Justice Douglas drew mainly from the 4th Amendment, replacing the wording "unlawful search and seizure" with "right of privacy."
Justice Black pointed out that this was a way to dilute the Constitution. "Privacy" can be expanded far beyond "unlawful search and seizure" to create a constitutional ban against many other things other than unlawful search and seizure which is what the framers wrote and intended by that Amendment.
The idea that I have a right to privacy against government invasion simply because an invasion of my privacy would be a deprivation of liberty sounds great until you consider the idea behind it.
ANYTHING I do, so long as it is "in private" can be justified in this manner.
I don't know if I have the mental capacity to make the connection tonight but this reminds me of something I heard on X96 as I was driving to work one day.
The DJs FLAMED about something the "Eagle Forum" had done that week (FYI: I can't stand the Eagle Forum). I can't remember but it was something anti-gay and anti-porn. The DJs went on and on about how consenting adults in the privacy of their own bedroom should be left alone.
The VERY NEXT story was about a man and his cousin who were separated and custody of their child was in dispute because they had engaged in an unlawful, incestuous relationship.
How do you draw a distinction? Once you open that door to anything "private" between "consenting adults" there is NO other line which can be drawn. Why is incest wrong? If measured by the same stick as homosexuality, there is no basis for the argument.
Now keep going... Why is statutory rape wrong? The decision to call an 18 yr old an "adult" is somewhat arbitrary. There is no magical change which occurs on a person's 18th birthday. They are no more or less wise or responsible than they were 24 hours ago. Yet that slight difference makes all the difference in the world.
Now expand that. We try some children in this country as adults. The court sees fit to try a 14yr old as an adult simply because the 14yr old engaged in "adult behavior." Why is a 14 year old held responsible for their criminal actions but not allowed to be given the responsibility to chose their own sexual actions?
My point is this... When judges go off the ranch and begin to create rights all by themselves, they open a Pandora’s box. A line has to be drawn somewhere and by diluting the Constitution to allow for one practice here and there which follows the whim of society, we erase that line and have no point of reference to which we can return.
Lest any of you should think I am a raging conservative lunatic. I will point out that I apply the same logic to the Bush wire tapping. If we open the door for one President to set aside due process, what is to stop another down the line from doing the same for an entirely different purpose? I don't care how venerable the quest to stop terrorism may be, we can not rewrite the rules just to satisfy the problem of the moment.
Respond if you will... It is late, I am tired and stupid. Mostly stupid...
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