Penumbra

• Author: Jeffrey Lehman, Shirelle Phelps

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The rights guaranteed by implication in a constitution or the implied powers of a rule.

The original and literal meaning of penumbra is "a space of partial illumination between the perfect shadow ? on all sides and the full light" (Merriam Webster's Collegiate Dictionary, 10th ed., 1996). The term was created and introduced by astronomer Johannes Kepler in 1604 to describe the shadows that occur during eclipses. However, in legal terms penumbra is most often used as a metaphor describing a doctrine that refers to implied powers of the federal government. The doctrine is best known from the Supreme Court decision of 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 of privacy.

The history of the legal use of the penumbra metaphor can be traced to a federal decision written by Justice STEPHEN J. FIELD in the 1871 decision of Montgomery v. Bevans, 17 F.Cas. 628 (9th C.C.D. Cal.). (At the time, Field was performing circuit duty while a member of the Supreme Court.) Since the Montgomery decision, the penumbra metaphor has not been used often. In fact, more than half of its original uses can be attributed to just four judges: OLIVER

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WENDELL HOLMES, JR., LEARNED HAND, BENJAMIN N. CARDOZO, and William O. Douglas.

In an 1873 article on the theory of TORTS, Justice Holmes used the term penumbra to describe the "gray area where logic and principle falter." In later decisions, Justice Holmes developed the penumbra doctrine as representing the "outer bounds of authority emanating from a law." Justice Holmes usually used the word in an attempt to describe the need to draw ARBITRARY lines when forming legislation. For instance, in the decision of Danforth v. Groton Water Co., Holmes referred to constitutional rules as lacking mathematical exactness, stating that they, "[l]ike those of the COMMON LAW, end in a penumbra where the Legislature has a certain freedom in fixing the line, as has been recognized with regard to the police power" (178 Mass. 472, 476?77, 59 N.E. 1033, 1034 [1901]).

Judge Hand expanded the meaning of the word in opinions written between 1915 and 1950 by using it to indicate the vague borders of words or concepts. He used it to emphasize the difficulty in defining and interpreting statutes, contracts, TRADEMARKS, or ideas.

Justice...