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.” 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.
“This seems like a philosophical question.”
My classmate was trying to parse the Supreme Court’s reasoning in two cases with similar facts and different outcomes. Our professor did not seem enthusiastic about the prospect of a philosophical discussion. Some professors teach introductory law classes like a foreign language, immersing students in legal syntax and vocabulary until its functioning becomes intuitive and fluid. Imagine trying to teach French students to conjugate a verb while they’re working on a grand theory for the union of sound and thought. You would get further by just drilling, “Je vais à la plage. Tu vas à la plage. Il/Elle/On va à la plage.” So our professor responded with a pointedly practical answer spelling out the officially recognized legal rule at work in the two decisions.
But there was an interesting, philosophical issue beneath the surface of the Court’s reasoning, even if we didn’t have enough time to cover it. These are the two cases:
Do you think the world is basically just? Do people get what they deserve most of the time? Provoked by an article in The Guardian entitled “Believing that Life is Fair Makes You a Terrible Person,” I discussed this question with one of my best law school friends on a ride home from school. Neither of us could square the idea of fairness with the world in front of us, and I think that is why we are both in law school.
The article discusses a theory– the just-world hypothesis– based on a number of studies. The theory suggests that people just can’t handle being helpless in the face of great injustice. So they find ways of imagining that the injustice is deserved. They imagine that this poor family is lazy, that black man was a criminal, or this woman was asking for it. On the other hand, the same studies suggest that when terrible things happen and there is a concrete way to help, people tend to sympathize with the sufferer rather than blaming her.