“Invisible Radiation” from the 10th Amendment and “Penumbras Formed by Emanations”

April 15th, 2014

In preparing to teach Missouri v. Holland (hopefully for the last time, as Bond should either reverse it, or narrow it), I was struck by how Justice Holmes characterized the 10th Amendment. It wasn’t just a “truism.” Even worse. It was “invisible radiation.”

The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved.

Holmes mocks the 10th Amendment’s vague terms, joking about whether there is any kind of “invisible radiation” emanating from it.

Yet, 45 years later, in Griswold v. Connecticut, this mockery of jurisprudence would pass for constitutional law.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

How did neither Justice Black nor Justice Stewart make this point in dissent!?

Alas, last night while watching the Lunar Eclipse, as hard as I tried, I could not discern any penumbras formed by the emanations from the sun. Though when I held my pocket Constitution up to the sky, it illuminated like in Raiders of the Lost Ark, and a zone of privacy merged around me. OK, I made up the last part, but why not.