So you think Griswold taught judicial reviewers to read between the lines? It seems, rather, to’ve been Demosthenes.
Textualists, intentionalists, and spiritualists (of the law) have long debated how we ought apply the lines of our Constitution and statues to specific cases. Can we, for instance, infer a basic privacy right from the first ten amendments.
Here’s a glimpse of our American debate, via an exchange at the Ashbrook Center:
Peter W. Schramm: Another question. Justice Thomas, could you comment on the reasoning of Griswald, and tell us what you believe it could lead to in terms of the expansion of privacy rights?
Justice Thomas: Griswald has been around a long time. I will comment on it only to this extent. Of course you know that there the rights were supposedly emanated from these penumbras. So when I got to the court, a friend of mine, who will remain nameless, sent me a custom made sign that’s on display in my office that says, “Please do not emanate into the penumbra.” And I’ve tried to steadfastly avoid doing that.
I don’t know what it would lead to. I think that the scholars have reached different conclusions, but we of course know that that was one of the precursor decisions for Roe v. Wade. And of course, we’ve changed that reasoning a bit inCasey. But we’re already beginning to get, and I’m just talking about a class of cases–I’m moving a little bit away from privacy a second–we’re already beginning to get the reliance in the right to die cases, on some of those cases, certainly on Casey, and language in Casey. So I think you can begin to see that the big cases, and I’ve said this to others, that you’re going to begin to see, I think, some cases now talking about who gets to live, who gets to die, who gets to be born and all sorts of things like that. And that’s going to be hard, and I think they’re going to rely on some of these precursor cases. And how we come out, I don’t know.
So it was neat tonight to read Adriaan Lanni’s article on judicial review in ancient Athens. The article describes the legal arguments that Athenians made against newly passed decrees and laws. Mostly, the arguments used two lines of reasoning – (1) the law’s inception violated the process through which laws are supposed to come about; and (2) the law directly violates a previous law. But then there was this:
Wolff’s landmark study, “Normenkontrolle” und Gesetzesbegriff in der attischen Demokratie, added a third category of legal argument: the statute under review contravened general principles that could be logically derived from existing statutes, as opposed to directly contradicting a specific provision. Wolff viewed this third category of argument as most central to Athenian notions of constitutionality, and carefully traced the Athenians’ increasing sophistication at extracting fundamental principles from statutes over time. Two additional aspects of Wolff’s theory are important for our purposes: first, the fundamental principles involve moral and social values and institutions … as well as democratic political and legal norms … and, second, the general principles are always derived from statutes and are never appealed to as independent, abstract values.
Got that? It seems to me Justice Douglas might have just as well phrased his penumbra as “general principles logically derived” from the Bill of Rights.
Another thing’s interesting here – note this about the Athenian principles and the penumbra: both avoid Natural Law, as Lanni points out at the end of the above quote. It is a judicial review based on text and construction, rather than divining meaning from without.
Like this:
Be the first to like this post.
