From Penumbras & Emanations to History & Tradition, and Beyond

In a recent essay on this blog, Professor Eric Segall argued that the conservatives who have long mocked Justice Douglas's opinion in Griswold v. Connecticut for its invocation of penumbras and emanations from the rights enumerated in the Bill of Rights have done the equivalent--and then some--for their pet projects, including Presidential immunity. I agree wholeheartedly with the critique, which, not to put too fine a point on it, accuses the Roberts Court of rank hypocrisy. I write today to linger over the alternatives to penumbras and emanations in Griswold itself.

Within a short time after Griswold was decided, its rationale shifted from Justice Douglas's penumbras and emanations to the more frank embrace of substantive due process of Justice Harlan, which he described in a concurrence in the judgment in Griswold and had foreshadowed in his dissent from the jurisdictional holding in Poe v. Ullman. When I teach Griswold, students are sometimes puzzled why Douglas didn't simply embrace the Harlan position.

As I explain, Douglas was hemmed in by his having joined earlier Hugo Black opinions relying on the proposition that the Fourteenth Amendment incorporates the Bill of Rights but doesn't embrace any unenumerated rights. Thus, Black dissented in Griswold. Douglas--who was nothing if not result-oriented and egotistical--wanted to recognize a right to contraception but also didn't want to admit that he had been mistaken to join all of Black's reasoning in the incorporation cases. Thus, he pretended that Griswold was somehow about an enumerated right, albeit one that comes out of the penumbras and emanations of the Bill of Rights.

What's easy to overlook in this saga is the weakness of Justice Harlan's own position. It's harder to mock, to be sure, but Harlan doesn't really explain how the Court is supposed to distinguish, on the one hand, "what history teaches are the traditions from which" the nation's and thus the Constitution's balance between "liberty and the demands of organized society" "developed," from, on the other hand, "the traditions from which it broke." Civil libertarians (like me) are glad that Harlan placed contraception in the latter category, but it's discouraging that in the same breath he expressed the view that "homosexuality" is not "immune from criminal enquiry, however privately practiced."

To be sure, society eventually broke from the traditions that led Justice Harlan to think that the state could use the criminal law to punish private same-sex intimacy. Stonewall was just four years after Grisowld, but as late as 1986, in Bowers v. Hardwick, the Court called an argument for such a right rooted in tradition "at best facetious." It would not be until 2003--over forty years after Harlan penned his Poe dissent--that Justice Kennedy, writing for the Court in Lawrence v. Texas and looking back, would describe this characterization as wrongheadedly "demean[ing]." 

Is there a better approach? Perhaps. In articles forthcoming in the Virginia Law Review and the Yale Law Journal, Professors Reva Siegel and Mary Ziegler provide extensive evidence that reproductive rights--especially in the form of medical care--are in fact deeply rooted in American history and tradition dating back to the adoption of the Comstock Act in the nineteenth century. Siegel and Ziegler place special emphasis on the country's rejection of "Comstockery"--which viewed anything involving sex as obscene and indecent--by the end of the first third of the twentieth century.

Siegel and Ziegler offer a powerful argument backed by prodigious research, but I worry a bit that they concede too much to the reactionary Supreme Court's history-and-tradition approach. Even as Siegel and Ziegler make clear that their approach to history and tradition is broader and substantially more nuanced than Justice Alito's, it is not obvious to me that one can find in the pre-Stonewall history of the twentieth century a comparable national conversation to the one about Comstockery and culminating in rejection of homophobia. Like Justice Harlan in Poe and Griswold, Siegel and Ziegler need to (and should) go beyond history and tradition, however broadly defined, to articulate a normative vision of liberty sufficiently capacious to encompass the full scope of liberty that I am sure they would find in the Constitution. (Hint: Justice Kennedy's suggestion in Obergefell v. Hodges of a "synergy" between liberty and equality provides a useful foundation, as I explained here.)

Put differently, Siegel and Ziegler have recovered a history that shows the Court's error in Dobbs and what would be an equally egregious error should the Court read the Comstock Act as the nationwide abortion ban that the authors of Project 2025 and J.D. Vance would have us believe it is. What they haven't shown is that history and tradition vindicate Lawrence and Obergefell.

The adage "you can't tear down the master's house with the master's tools" is not a universal truth, but it contains a useful caution. To mix the metaphor, there is a danger that in playing on the opponent's chosen field you relinquish weapons--here, frankly normative arguments and extrapolations--that you might need to accomplish all of your goals.