SHOULD courts interpret the Bill of Rights narrowly (that is, more or less to mean what they say) or broadly (that is, imaginatively)? A major obstacle to our achieving or returning to a workable society is that this is not considered a serious question by most law professors, media people, and other members of the articulate class. Rights are good things, constitutional rights still better things, and fundamental constitutional rights best of all. Therefore good judges—persons devoted to bringing about the “basic social change” we so badly need—will interpret these Amendments expansively. Indeed, the very best judges, say Douglas or Brennan, will interpret them explosively, treating them as radioactive or phosphorescent, giving off emanations that form a penumbra (see Griswold). They will then interpret not only the actual Bill of Rights but also what they discern in the penumbra, which, as you can imagine, is no easy task.
Mr. Graglia is A. Dalton Cross Professor of Law at the University of Texas School of Law.
Comments