With abortion rights before the Supreme Court this term, I’ve been thinking about the metaphor that brought privacy—and by extension, reproductive health rights—under Constitutional protection. In Griswold v. Connecticut, Justice Douglas reasoned that enumerated individual rights “have penumbras, formed by emanations from those guarantees that help give them life and substance.”[1] Douglas analyzed these penumbras to extend the zones of individual rights, frustrating dedicated textualists who saw no justification for them in the language of the Constitution.

It might be helpful to pause here and clarify exactly what a penumbra is. Hold an object up in front of a light source so that it casts a shadow on a nearby surface: at the center of the shadow will be its most focused darkness, its umbra; move your gaze out to the border of the shadow, to where it meets the light, and you will see a zone of unfocused shadow, a kind of half-light called the penumbra. In Douglas’s metaphor, a certain set of enumerated rights are the umbra and the unenumerated right to privacy is their penumbra, giving them life and substance.

According to its critics, the problem with Douglas’s metaphor is that if individual rights against government intrusion can be expanded through analysis of their penumbras, then so too can government rights to regulate citizens’ conduct. If the Supreme Court rolls back federal protections for reproductive rights, a likely avenue for doing so will be through a slightly expanded view of states’ rights to regulate the practice of medicine. That scenario would dramatize the weakness of a metaphor that cuts both ways without providing guidance on how to mediate competing interpretations.

This confusion might be a function of the metaphor’s unconventional imagery. Douglas’s use of shadow to find truth runs counter to much of the Western philosophical and legal tradition. Plato called the sun the “child of goodness,” metaphorically equating light with truth. Conversely, his allegory of the cave warned against a life spent mistaking shadows on a wall for reality. Those metaphors have stood the test of time. During the Founding Fathers’ lifetimes, people often spoke of becoming “enlightened.” In contemporary constitutional law, textualists who are offended by the vagaries of penumbras prefer the more exacting standard of a “bright-line rule.”

But even lines and light make imperfect metaphors. The most universally shared line in the world, the horizon, is not actually there. The horizon’s deception helped to sustain the misconception that the world was flat. And light generally, for its part, is not a neutral, objective thing. We only see it by virtue of what it falls on or flows through. Because of this subjective, mutable quality, the German color theorist Goethe called color “the deeds and sufferings” of light.

But we have persisted in treating light as external to and independent of human agency. That may be why it is so central to sustaining the fiction of race. In 1903, W.E.B. Du Bois prophetically declared that “the problem of the Twentieth Century is the problem of the color line.” The color line, like the horizon, is objectively unreal but subjectively essential to shaping the modern worldview. So bright lines may not be any better than penumbras. Whether looking at shadows or light, there’s always interpretive work to be done.

The underlying problem here could be that lawyers are not well-equipped to interpret metaphors. Thomas Reed Powell wrote, “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”[2] Metaphors ask us to attach meaning in novel and unexpected ways. If, as Powell argues, the legal mind struggles with connections that are fundamental and self-evident, how will it do with connections that are novel and evocative?

As a result, some may caution against using metaphors in legal writing, preferring to deploy only literal language and taut syllogisms as the basis of legal reasoning. But this is unlikely to solve the problem. Thousands of years ago, the Buddhist philosopher Sthiramati explained why with the following syllogism: 1) it is impossible for the mind to directly perceive external objects; 2) a word is used metaphorically when it stands for something that is not directly perceived; 3) therefore, all language use is necessarily metaphorical.[3] Octavio Paz, the Mexican poet, got at the same point when he called language a vast metaphor of reality.[4] If those perspectives seem somewhat far afield, you can refer instead to Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., a case concerning the interpretation of contractual language. Judge Traynor, one of the great legal minds of his generation, rejected the simplistic notion that the “plain language” of an agreement rendered the meaning of a contract objectively apparent. He attributed this idea to “a judicial belief in the possibility of perfect verbal expression,” which he dismissed as “a remnant of a primitive faith in the inherent potency and inherent meaning of words.”

You might not buy this reasoning with a thing/word like “chair.” But it makes more sense when you take, for example, the Constitution’s use of the word “commerce.” There is no discrete entity out there that is commerce. You cannot go find the thing, hold it down, and mark it with the letters C-O-M-M-E-R-C-E in order to settle its meaning for all people and all time. Commerce include people, objects, events, and ideas. The Court tries to give the word meaning by attaching other words to it: intercourse, transportation, manufacturing, manner of production. Each of these words requires further discussion to clarify its meaning. “Commerce” is a symbol that gives off symbols, a metaphor.

Chief Justice Marshall famously exhorted us never to forget, “that it is a constitution we are expounding.” Marshall was explicitly calling for an understanding of the document’s long-term purpose that would allow it to adapt to changing times. But he was also implicitly calling for a metaphorical imagination by bringing our attention to the thing at the core of constitutional law: a paper document that the people ordained as a “Constitution.” Because a piece of paper is clearly not what actually constitutes the United States of America, when we talk about “the Constitution” we are already speaking metaphorically.[5]

So if Constitutional law begins with metaphor, it does not bode well for the legal mind that Powell describes. Metaphor is inescapable, inviting contested attachments and interpretations. The virtue of forthright metaphorical language is that it does not hide the creative act inherent in legal reasoning. Textualism’s pretension to purely literal language, by contrast, tends to obscure authorship and intellectual process. In law, you can search for truth in the dark, the light, or the half-light. But it would be a mistake to forget that there will always be a human hand guiding the beam or casting the shadow.

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Ian Ramsey-North is a rising second-year student at BC Law. He loves to hear from readers: email him at ramseyno@bc.edu.

 

[1] “Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’” Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[2] Arnold, Thurman. The Symbols of Government (New Haven: Yale University Press, 1935). Quoted in Justice Ginsberg’s dissent to the Court’s grant of a writ certiorari in Fisher v. Univ. of Texas at Austin. 570 U.S. 297, 336 (2013).

[3]Roy Tzohar. “Does Early Yogacara Have a Theory of Meaning? Sthiramati’s Arguments on Metaphor in the Triṃśikā-bhāṣya.” Journal of Indian Philosophy. Journal of Indian Philosophy (2017) 45:99.

[4] Octavio Paz. The Bow and the Lyre: The Poem. The Poetic Revelation. Poetry and History. Trans. Ruth L.C. Simmons (University of Texas Press: Austin, 1973), 24.

[5] The distinction between the document and what it represents recalls Jorge Luis Borges’s short story, “On Exactitude in Science:”

…In that Empire, the Art of Cartography attained such Perfection that the map of a single Province occupied the entirety of a City, and the map of the Empire, the entirety of a Province. In time, those Unconscionable Maps no longer satisfied, and the Cartographers Guilds struck a Map of the Empire whose size was that of the Empire, and which coincided point for point with it. The following Generations, who were not so fond of the Study of Cartography as their Forebears had been, saw that that vast Map was Useless, and not without some Pitilessness was it, that they delivered it up to the Inclemencies of Sun and Winters. In the Deserts of the West, still today, there are Tattered Ruins of that Map, inhabited by Animals and Beggars; in all the Land there is no other Relic of the Disciplines of Geography.

—Suarez Miranda,Viajes de varones prudentes, Libro IV,Cap. XLV, Lerida, 1658