The Constitution is not a ceiling on our rights, it's the floor. Consider, for example, the Ninth Amendment, which provides:
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The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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If a State Legislature were to enact a provision that expressly expanded individual rights, that puts the discussion on an entirely different basis. However, the Constitution's MINIMUM guarantees of essential liberties are what are being used to further, for example, decisions such as Roe v. Wade, which relied on the "penumbra rights doctrine" that suggested (and I'll quote William O. Douglas here, just so I'm not accused of paraphrasing the Court):
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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.
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It is that kind of reasoning against which is weighed the interest of the unborn. And that's what Court hung it's decision in
Roe on.
Consider the opposite. Consider how frequently the guarantees of the Second Amendment, which is specifically articulated, are abridged by the States. This is no mere "penumbra" of a right: the Framers considered this one to be SO essential to the Constitution's "framework of ordered liberty" that they put it SECOND in line. Why do you think that is?
Anyway, Bill, I agree with you insofar as the "penumbra rights doctrine" does look strikingly similar to judge-made law, and creates a right to privacy that overrides any other interests. It's not the responsibility of the Judicial Branch to extend the scope of rights retained, it's the Legislative Branch's job. And how ironic it is that the very same Legislature routinely acts to undermine one of the expressly written provisions.
The fact that Scalia articulates this brilliantly just makes him more of a target for people who cannot stand the fact that the Constitution stands in the way of their dream for American Utopia.