If you want to get a laugh out of a constitutional “originalist” like Supreme Court Justice Clarence “if it ain’t there it ain’t there” Thomas, use the word “penumbra” in a sentence. Yes, it is inside, but it’s funny, to Clarence and his Federalist pals, thanks to Supreme Court Justice William Douglas, who, writing in Griswold v. Connecticut, found a constitutional right to birth control (which Connecticut had banned), not in a specific clause of the Constitution, but in the “penumbras” (shadows) and “emanations” of other rights that are specifically enumerated therein. Need a right? Find a penumbra, the Federalist folks cackled. Goddamn liberals!
Well, sometimes, a feller needs a penumbra, and Clarence and the conservative crew who pretty much run things (not always—I exaggerate) on the Court did need one in FTB v. Hiatt, overturning a previous decision by the Court which allowed states to be sued in the courts of other states. States can declare “sovereign immunity” within their own courts, meaning that no one can sue them, but, the Court had previously ruled, 40 years earlier, in Nevada v. Hall, that they couldn’t protect themselves from suits brought in the courts of other states.
Well, to hell with that, said Thomas, J, although Clarence, it must be said, prefers to find his imagined principles “implicit” rather than emanating—"embedded in the text and structure of the Constitution”—which sounds nice and sturdy, though how something can be “embedded” in text and yet not, you know, actually written out so that you can read it is an interesting question.
Steven Sachs, writing in the (generally) libertarian “Volokh Conspiracy,” has a nice take on the ins and outs of the decision, and offers some interesting links as well. Perhaps most interesting—and even amusing—are several comments at “PrawfsBlawg”,1 saying that, well, it’s a tough question that could be argued either way, but it’s correct policy, so, really who cares what the Constitution says? Left unmentioned is why the Court felt it could and should overturn precedent without specific constitutional language to, you know, justify its brazen power grab. Isn’t stare decisis (following precedent) embedded in the text and structure of the Constitution? Not when Clarence Thomas is on the case!
Afterwords
To his credit, Professor Sachs (I guess he’s a professor) does note with concern that the nonreasoning of Hyatt does rather befoul the originalists’ nest, in which he resides. But, for my money, the idea that “originalism” is anything other than “opportunism” was utterly destroyed by the Court’s worst decision ever, Bush v. Gore.
From a “realist's” perspective—and I try to be real, most of the time—both liberals with their “living Constitution” and conservatives with their “originalism” are just making it up—that is, they decide what is “right” rather than what is constitutional. Liberals are at least honest about what they are doing—sometimes—but it’s quite possible to be honestly awful. Judicial reticence is not seldom the truest wisdom, but, sadly, not seldom the least practiced as well.
1. Ever wonder where the expression “funny as a lawyer” came from? Wonder no more!
