No Penumbra from Roberts

I caught a clip of John Roberts’s testimony from Day Two of the hearings and found this statement a bit interesting:

I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas’ opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas’ approach.

My educated guess is that the inaudible part was the word penumbras. What is interesting about this is that, as Roberts goes on to say in so many word, he agrees with the conclusion of Griswold, but not the rationale behind Justice Douglas’s opinion, which relied, in part, on emanating penumbras from the 9th Amendment.

That Roberts seems to reject that foundational bit of 9th Amendment doctrine should be refreshing to conservatives. In fact, as Roberts points out, he prefers using the “liberty interest protected under the due process clause” as opposed to those alleged rights emanating from the 9th Amendment.

Roberts does not answer the question of how expansive he sees the liberty interest, and we are left guessing. But, that he seems to have not bought into the penumbras of the ninth amendment is reassuring.

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Erick Erickson

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