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'Penumbra': The Roots of a Legal Metaphor

NCJ Number
Hastings Constitutional Law Quarterly Volume: 15 Issue: 1 Dated: (Fall 1987) Pages: 81-100
B Henly
Date Published
20 pages
Legal language is rife with metaphors -shorthand versions of reality that emphasize or exclude to make a point. The most important and perhaps most puzzling metaphor in American Constitutional law is the prenumbra metaphor.
The first use of this metaphor appears to be Oliver Wendell Holmes in 1873, who suggests that the penumbra is a gray area in which logic and principle falter. The metaphor also has been used by Justices Cardozo, Frankfurter, Hand, and Douglas and by Professor Hart. In striking down a Connecticut statute forbidding the use of contraceptives (Griswold v. Connecticut), Justice Douglas states that 'specific guarantees from the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.' From its beginning, the metaphor has been fuzzy and blurry. By its nature, it evokes no hard-edged sensation or clear image. It expresses as much as anything the distance judges must travel between fact and law and how poorly equipped they are to bridge the gap between the two. For this reason, the penumbra metaphor has often been used as a metaphor for the limits of judicial reasoning. In the penumbra, judges are to some extent free from text and precedent, as well as reason; but they are never free of responsibility. While metaphors such as the penumbra are useful and perhaps inescapable, they are not a substitute for theory. 118 footnotes.