Do you believe in penumbras?
“In NAACP v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, we protected the ‘freedom to associate and privacy in one’s associations,’ noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid ‘as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.’ Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of ‘association’ that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430—431, 83 S.Ct. 328, 336—337. In Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man’s ‘association with that Party’ was not shown to be ‘anything more than a political faith in a political party’ (id., at 244, 77 S.Ct. at 759) and was not action of a kind proving bad moral character. Id., at 245—246, 77 S.Ct. at 759—760. 67 Those cases involved more than the ‘right of assembly’—a right that extends to all irrespective of their race or idealogy. De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278.“The right of ‘association,’ like the right of belief (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178), is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful. 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. See Poe v. Ullman, 367 U.S. 497, 516—522, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). 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, 483–84, (1965) (emphasis added.)
Who cares? You should!
In Griswold, the Supreme Court ruled that there is a “penumbra” in the United States Constitution of constitutional rights. In other words there are some rights that “while it is not expressly included…is necessary in making the express guarantees fully meaningful.” In drawing such a conclusion, Douglas and his colleagues created an expansive view of Constitutional rights that would exist because a judge found that they must exist as a necessity to make the “express guarantees fully meaningful.”
The Supreme Court made the United States Constitution a subject of literary theory, social context, or a priori justification rather than a source document defining the explicit checks and balances contained within the American plan of governance.
Making rights up along the way the Supreme Court and the other federal courts did with a vengeance after the Griswold opinion! The most infamous foray into literary theory was when the Supreme Court eight years later, in 1973, rendered the opinion in Roe v. Wade that the penumbra of rights under the Fourth Amendment right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures somehow extended to a right of a parent to choose to abort her child. There simply was nothing in the Constitution that would extend the Fourth Amendment to such a degree. Nevertheless, Supreme Court Justice Harry Blackmun felt that extending the Fourth Amendment in such a manner was “necessary in making the express guarantees fully meaningful.”
When jurists and attorneys have stated that they are “strict constructionists” or “Constitutional conservatives” after 1973, they usually mean that they don’t support the literary concept of a “penumbra” in the Constitution. Rather, they take the not at all strange approach that words in a source document as important as the Constitution and as important as the Bill of Rights actually have an intended meaning.
Trump, Collins, and the potential nominee
Therefore, when President Trump meets with potential Supreme Court nominees, he should really only ask them one question: “Do you believe in penumbras?” No other question more fully covers a variety of issues that modern liberals have used to create a monstrous version of the Constitution that reflects little of the intent of the 1787 Constitutional Convention or the Bill of Rights authors (primarily James Madison) thereafter.
If a potential nominee says “no” and has the legal writing or career positions to prove that, then President Trump has fully qualified the candidate (other than appropriate background checks).
Then when liberal Republican Senator Susan Collins (R-Maine) asks the Trump nominee for the United States Supreme Court the following questions, he or she may truthfully answer as follows:
Collins: “Did President Trump or his White House staff ask you to commit to a particular view on abortion?” Nominee: “No.”
Collins: “Have you made a commitment on whether you believe the Court should overturn Roe v. Wade?” Nominee: “No.”
Collins: “Do you believe the Court should overturn Roe v. Wade?” Nominee: Under the Federal Judicial Conduct Code, I can’t answer such a specific question about how I would rule in a particular case.”
The “penumbra” is the beginning and the end of the analysis for conservatives who care about ending federal judicial tyranny from judges who believe they can create new Constitutional rights “in making the express guarantees [already in the Constitution] fully meaningful.”