Glenn H. Reynolds also observed that courts regularly engage in penumbral reasoning, regardless of their position on the political spectrum. [40] However, former Ninth District Judge Alex Kozinski and UCLA Law School Professor Eugene Volokh note that the courts` use of predatory reasoning “goes both ways” because it can be used both to expand individual liberties and to expand government powers at the expense of individual liberty. [41] Richard E. Levy also argued that criminal argumentation, fundamental rights analysis, and political process theory may justify judicial intervention in the name of individual liberty, as well as judicial intervention to promote economic interests. [42] Despite the “central” role played by penumbral reasoning in American constitutional jurisprudence, the Supreme Court`s use of penumbra reasoning has also been controversial. [43] District Judge Robert Bork of the District of Columbia, for example, was a particularly vocal critic of Supreme Court decisions that identified rights that are not explicitly enumerated in the constitutional text. [44] Similarly, in his dissenting opinion in Griswold, Justice Hugo Black expressed concern about the conclusion of a right to privacy in the darkness of the Constitution and that he did not agree with the majority`s attempts to “stretch” the Bill of Rights. [45] In addition, Louis J. Sirico Jr.
described the term as “intellectually confusing,”[46] and William J. Watkins, Jr. wrote that the dim light of the Constitution is “a seemingly strange place to discover constitutional guarantees.” [47] Robert J. Pushaw Jr. has also described penumbral thinking as a “transparent fictitious” process,[48] and Jennifer Fahnestock has warned that “implied constitutional rights” could be lost “because of their lack of permanence.” [49] According to the logic of this legal theory, a law can involve rights without formulating them directly. As long as a reasonable interpretation of a statute could provide for a particular statute, a judge could argue that a legal issue falls within the darkness of the law. While the reasoning may be a bit flawed and the legal basis may be difficult to prove, if lawyers and judges can argue the issue convincingly, people can accept it. The right to privacy is a prime example of darkness. Many people believe that this right is enshrined in the Constitution of the United States. In fact, this is not the case. Instead, judges and legal scholars argue that clauses such as the First Amendment contain a right to privacy in their dim light, and many legal cases have established jurisprudence to support this belief, making it difficult to challenge.
In Griswold v. Connecticut, a challenge to the ban on the sale of contraceptives, it was argued that this law violated marital privacy and thus the First Amendment. “The First Amendment has a darkness in which privacy is protected from government interference,” the court said. “Although it is not explicitly contained in the First Amendment, its existence is necessary to make explicit guarantees fully meaningful.” This term is borrowed from astronomy, where penumbra is the shaded area surrounding a total solar eclipse. Instead of being definitively enshrined in law, rights are implicit in the darkness, making them a legal grey area. It is possible to question the logic used by a lawyer or academic when interpreting evidence linking a particular law to a particular rule of law by using supporting documents such as other statutes, records of persons involved in the drafting of the law, etc. Since Griswold, the penumbral doctrine has been used primarily to represent the implicit forces emanating from a particular rule, thus extending the meaning of the rule into its periphery, or penumbra. In a legal sense, a penumbra is a logical extension of a legal rule, law or statement that grants people rights not expressly stated in the law. This concept comes from the precedents of the 19th century in the United States.
Justice Oliver Wendell Holmes has contributed significantly to the legal debate on this concept and has referred to it in several court cases. One of the most famous invocations of legal darkness occurred in 1965 in Griswold v. Connecticut. Accordingly, Douglas J. argued that the Constitution contained “perennial rights to privacy and tranquility.” [33] Douglas J. also noted that without the “peripheral rights,” the “specific rights” enumerated in the Constitution would be “less secure.” [34] According to Burr Henly, Douglas J.`s majority opinion used this term not to identify artificial limits of language and law, as Holmes J. had done, but to link the text of the Constitution to unenumerated rights. [35] Prior to Griswold, different Supreme Court justices often used different definitions of the term in different contexts, perhaps because the judges did not understand the meaning of the word.
[22] In Schlesinger v. Wisconsin, for example, Justice Oliver Wendell Holmes used this term to describe implicitly derived rights. [23] He wrote: “The law allows for the embrace of a penumbra that goes beyond the contour of its object so that the object can be secured. [24] Similarly, in Olmstead, Justice Holmes argued against the United States that wiretap evidence should not be admitted at trial and that “the darkness of the Fourth and Fifth Amendments covers the accused.” [25] However, in A.L.A. Schecter Poultry Corp. v. United States, Judge Benjamin Cardozo used this term to describe an area of legal uncertainty. [26] He wrote: “There is no darkness of uncertainty that clouds the verdict here.