CARDOZO LAW REVIEW
[Vol. 28:2suggested elsewhere. The theoretical validity of each analyticalframework is considered separate from the quality of the application of that framework by its proponents. This abstraction, and a companiondiagrammatic representation of each framework,
serves to focusattention on the merits or demerits of the general frameworksthemselves. After extracting what is valid from these approaches, theArticle constructs and proposes a new composite theoretical model forthe courts to use in fundamental rights cases.The ultimate utility of the proposed model depends in part on twosignificant problems of implementation. These are: (1) the problem of identifying the proper sources of law and methods of interpretation thatcourts should use in applying the model and finding particular rights;and (2) the appropriate judicial mechanisms of enforcement—includingsensible prudential and structural limitations on such enforcement—forthose fundamental rights that legitimately are developed by courts fromappropriate source materials. These thorny implementation issues areaddressed gingerly here, and only to the extent that they help to explainthe proposed model. The primary goal is to engender debate andrefinement of the proposed model. I am hopeful that the outcome of this debate will be a workable consensus for a model that is usable bythe courts. Once this is accomplished, there will need to be a seriousand more detailed exploration of sources, methods and institutionalconsiderations in individual cases. The further devil (and hopefully thespare angel) is, as always, in these details.Part I of this Article discusses the
majority opinion. PartI.A uses the language of penumbras relied upon by Justice Douglas, anddemonstrates that there is legitimacy and vitality to this theory, eventhough it was rather vaguely and poorly explained in
. Part I.Bpresents a more workable set of alternative models for the majority’simplied rights theory. These models contribute naturally and directlytoward development of a satisfactory comprehensive approach for judicial use in finding fundamental rights.Part II considers two concurring opinions in
. Part II.Adevelops a model for the proper interpretation of the Ninth Amendmentfrom Justice Goldberg’s opinion, and explains the role of thisinterpretation in my proposed composite model at the end of the Article.Part II.B looks closely at Justice Harlan’s views, and critically analyzesthe underlying doctrine of substantive due process upon which he relied.
the Chief Justice and Justice Brennan, issued a concurring opinion.
at 486-99. Justices Harlanand White concurred only in the Court’s judgment, and each issued a separate concurringopinion.
at 499-502 and 502-07, respectively. Justice Black filed a dissenting opinion, joinedby Justice Stewart, and Justice Stewart filed a dissenting opinion, with the favor of joiningreturned by Justice Black.
and 527-31, respectively.