Oregon State Bar Bulletin — OCTOBER 2005

Parting Thoughts
"Would That Make It So?"
By Barry Adamson

As the Senate preened and flexed its Constitutional authority to lend its "advice and consent" to the president concerning nominations to the Supreme Court, some Senators no doubt wished they could flee from the daunting task of contriving questions to which nominee John Roberts could not possibly respond. But the question that you can assure yourself no Senate critic would ever pose to John Roberts would be one with which Roberts would find himself quite comfortable: "If the Supreme Court declared one plus one to now equal three, would that make it so?" And the answer that you can assure yourself you would never hear from John Roberts would sound something like this: "Hmmm ... that’s a good one; I’ll have to get back to you on that."

Actually, the more pertinent question — and one that would never grace a senator’s lips — would be this: "If the Supreme Court ordained that the Constitution possessed an emanating penumbra, would that make it so?" John Roberts would find the response effortless; it would sound something like this: "Whaaaa … ?"

A what, you ask? A "penumbra"? Yes, indeed; the Supreme Court once found one in the "emanations" — the Court’s word — of the 10 amendments that comprise the Bill of Rights (and in the 14th Amendment, through which the Bill of Rights applies to the states). For printed matter like the Constitution, you would find a "penumbra" somewhere between the lines, in the seemingly vacant spaces between the letters themselves; not really there, but, rather, that blurry and indistinct shadow that seems to appear when you stare between two lines of text for a really, really long time. (And precisely how anything "emanates" from the "penumbra," I have not a clue.)

To his critics, Roberts actualized the dilemma of all dilemmas: an unpretentious jurist who abides by the geeky notion that a jurisprudence of Constitutional law ought to begin and end with the words in the Constitution. After all, a lot of folks in Philadelphia in 1787 and in various Congresses since then gave the Constitution and its XXVI amendments a lot of thought, and the folly that the various authors neglected to scribble in some "right" on their "to-do" list remains as implausible as "emanating penumbras."

Nonetheless, some "penumbra" devotees cuddle the ethereal view — and I’m not making this up — that "(o)ne’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions" about the Constitution. Those very words appear in one of the two opinions in which the Supreme Court detected "emanations" from a Constitutional "penumbra." Their author should have followed those thoughts with these words: "And if a judge proves unable to eliminate those distractive influences from the judicial decision-making process, then that judge ought to consider another line of work" — like astronomy.

Speaking of which, some years ago a few ambitious stargazers discerned another Constitutional phenomenon that had endured undetected by the brightest of minds for dozens of decades: a theretofore-unnoticed "privacy" right neither mentioned in the Constitution itself nor referenced anywhere in the well-chronicled history of both the Constitution and its various amendments. Its source? These words in the Constitution’s 14th Amendment: "No State shall … deprive any person of life, liberty, or property, without due process of law(.)"

Can’t find it? Me neither. But the Supreme Court — whose members at the time included one who once boasted that "with five votes, you can do anything around here" — did. (Actually, the same wording has lurked unnoticed in the Constitution’s Fifth Amendment since 1789 ("No person shall … be deprived of life, liberty, or property, without due process of law(.)"), but apparently the "emanations" from the 1866-vintage 14th Amendment felt stronger.)

One can only suppose that, when Congress first penned the phrase "life, liberty, or property" in 1789 as part of the Fifth Amendment, a careless James Madison — a Princeton graduate without whom the Constitution would likely contain no Bill of Rights — simply forgot to mention "privacy" even once during the 20 different days from June to September of 1789, that the House of Representatives pondered the Constitution’s first amendments (not to mention the 10 additional days that the Senate considered those amendments). ("What was I thinking?")

No, the questions with which the Senate entertained the nation in September sounded a lot like this: "Mr. Roberts, if the Supreme Court declared one plus one to be three, would you, could you, dare you, spurn America’s abiding respect for the doctrine of stare decisis and return us to the dark ages of computational rights in America just because "penumbra"-based math doesn’t really exist?"

Hmmm … I’ll have to get back to you on that.

Barry Adamson is an attorney and writer in Lake Oswego.

© 2005 Barry Adamson

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