Commentators disagree on the exact origin of the use of the term penumbra in American jurisprudence, but most believe it was first used in the late nineteenth century.  Burr Henly, for example, traces the first use of the word to an 1873 article by Oliver Wendell Holmes, in which he argued that it was better for the new law to “grow up in the darkness between darkness and light than to remain in uncertainty.”  Luis Sirico and Henry T. Greely, on the other hand, cite the term to Justice Stephen Johnson Field`s 1871 judgment in Montgomery v. Bevans, where Field J. used the term to describe a period of time when it was uncertain whether a person could legally be considered dead.  Other commentators, including Glenn H. Reynolds and Brannon P. Denning, note that elements of penumbra reasoning can be found in much older cases that precede the first use of the term penumbra; They trace the origins of criminal reasoning back to cases of the U.S. Supreme Court in the early nineteenth century.  For example, Reynolds and Denning describe the opinion of Chief Justice John Marshall in McCulloch v. Maryland as “the epitome of penumbral thought.”  Douglas` most famous use of penumbra is found in Griswold. In the Griswold case, plaintiffs Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C.
Lee Buxton, professor of medicine at Yale Medical School and director of the League`s New Haven office, were convicted of prescribing contraceptives and giving contraceptive counseling to married people in violation of a Connecticut law. They question the constitutionality of the law, which makes it illegal to use drugs or drugs to prevent conception on behalf of married people with whom they have a professional relationship. The Supreme Court ruled that the law was unconstitutional because it violated an individual`s right to privacy. In his statement, Douglas explained that the specific guarantees of the Bill of Rights have penumbra “formed by emanations of those guarantees which help them to give life and substance,” and that the right to privacy exists in this area. “Penumbra.” Merriam-Webster.com Dictionary, Merriam-Webster, www.merriam-webster.com/dictionary/penumbra. Retrieved 27 September 2022. The history of the legal use of the penumbral metaphor dates back to a federal decision by Justice Stephen J. Field in the 1871 Montgomery v. Bevans, 17 F.Cas. 628 (9th C.C.D. Cal.).
(At that time, Field was a member of the Supreme Court.) Since Montgomery, the penumbral metaphor has not been used often. In fact, more than half of its original uses can be attributed to just four judges: Oliver Wendell Holmes, Jr., Learned Hand, Benjamin N. Cardozo, and William O. Douglas. Accordingly, Douglas J. argued that the Constitution contained “perennial rights to privacy and tranquility.”  Douglas J. also noted that without the “peripheral rights,” the “specific rights” enumerated in the Constitution would be “less secure.”  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.  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.  In Schlesinger v.
Wisconsin, for example, Justice Oliver Wendell Holmes used this term to describe implicitly derived rights.  He wrote, “The law allows for the embrace of a penumbra that goes beyond the contours of its object so that the object can be secured.”  Similarly, in Olmstead, Justice Holmes argued against the United States that wiretap evidence should not be admitted to trial and that “the darkness of the Fourth and Fifth Amendments covers the accused.”  However, in A.L.A. Schecter Poultry Corp. v. United States, Judge Benjamin Cardozo used this term to describe an area of legal uncertainty.  He wrote: “There is no darkness of uncertainty that clouds the verdict here. To find immediacy or frankness here is to find it almost everywhere.  In Coleman v. Miller, Justice Felix Frankfurter used the term more closely related to its traditional definition.
 Arguing that a group of legislators lacked standing to prosecute, he wrote: “I have no doubt that the limits of such a legal interest have a darkness that gives a certain freedom to judge compliance with our judicial requirements.”  In U.S. constitutional law, penumbra includes a group of rights implicitly derived from other rights expressly protected in the Bill of Rights.  These rights have been identified through a process of “interpolation argumentation” in which specific principles are recognized on the basis of “general ideas” explicitly expressed in other constitutional provisions.  Although scholars have traced the origin of the term back to the nineteenth century, the term first came to public attention in 1965 when Justice William O. Douglas` majority opinion in Griswold v. Connecticut has identified a right to privacy in the dim light of the Constitution.  The original and literal meaning of penumbra is “a space of partial illumination between the perfect shadow. on all sides and full light” (Merriam Webster`s Collegiate Dictionary, 10th edition, 1996).
The term was coined and introduced in 1604 by astronomer Johannes Kepler to describe shadows that occur during eclipses. However, in legal terms, the penumbra is most often used as a metaphor for a doctrine that refers to the implied powers of the federal government. The doctrine is best known in the Supreme Court`s decision Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), where Justice William O. Douglas used it to describe the concept of an individual`s constitutional right to privacy.
Despite the “central” role that criminal reasoning has played in American constitutional jurisprudence, the Supreme Court`s use of penumbra reasoning has also been controversial.  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.  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.  Moreover, Louis J. Sirico Jr. described the term as “intellectually confusing,” and William J. Watkins, Jr. wrote that the penumbra of the Constitution is “a seemingly strange place to discover constitutional guarantees.”  Robert J. Pushaw Jr.
has also described penumbral thinking as a “transparent fictitious” process, and Jennifer Fahnestock has warned that “implied constitutional rights” could be lost “because of their lack of permanence.”   However, former Ninth District Judge Alex Kozinski and UCLA Law School professor Eugene Volokh note that the courts` use of criminal arguments “goes both ways” because they can be used both to expand individual liberties and to expand government powers at the expense of individual liberty.  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.  In a legal sense, a penumbra is a logical extension of a rule, statute or legal statement that grants rights to persons not expressly set out in the law. This concept comes from the precedents of the 19th century.