A better argument than “penumbras and emanations”

With Samuel Alito’s nomination to the Supreme Court, bloggers are tackling Roe vs. Wade, and the precedent-setting Griswold vs. Connecticut. Most bloggers on both sides of the isle wrestle with Justice Douglas’ “penumbras and emanations,” which I, as a skeptical progressive, find to be bad law.

Now, I’m not a lawyer, but I’m a reasonably intelligent and highly analytical philosopher-type. Here’s my counterfactual-world alternative to have argued to Griswold’s proper conclusion.

Instead, IMO, Douglas should have tried to craft a decision around the Ninth Amendment combined with common law, plus the Fourth Amendment, the First Amendment and possibly the Fifth Amendment. and previous Supreme Court rulings.

Warrants for first sub-conclusion/major premise:
1. Note that the Fourth Amendment's provisions about being "secure in their persons"; note that this is a privacy right issue, and not "just" a protection against government coercion.

2. The Fifth Amendment might be used to argue that protections against self-incrimination are likewise a privacy right, not "just" a protection against government coercion.

3. Note that the freedom of religion clause of the First Amendment is also, in part, a privacy right, because churches are voluntary and private organizations.

4. Beyond that, get to the question of a broader right to privacy as an established tenet of common law, citing appropriate state and federal court rulings on privacy rights issues in general. Cite from as broad a range of issues being litigated or tried as possible, to show the breadth of a "general right to privacy."

Sub-conclusion/major premise: An explicit right to privacy is general, fundamental, pervasive and broad.

Minor premise: This right, though not enumerated, being fundamental, is covered by the Ninth Amendment.

Conclusion: Therefore, an explicit right to privacy, including matters of sexual contraception, is a constitutionally protected right.

Bonus 1: This gets, short of a constitutional amendment, a privacy right securely anchored in constitutional law.

Bonus 2: It's relatively a short step from here to overturning sodomy laws, whether oriented against homosexuals only, or universal.

A draw on Roe: I don't think it would be any easier to argue to Roe from here, but I don't think it would be any harder.

Update:
An e-mail from Kevin Drum made me realize I had not explained carefully enough how I different from Douglas, and the import of that.

Douglas got to his conclusion in a more wandering way than I think my proposed argumentation would. And he used those nutty words.

I’m not a lawyer, of course, but I think he could have built a broader case in case law and common law and not used the language he did.

By building a broader foundation, he could then have made a more unqualified declaration that said, simply: “A explicit right to privacy, broad-ranging in nature, is one of the fundamental unenumerated rights protected by the Ninth Amendment.” Period.

In other words, “penumbras” and “emanations” are fudge and hedge words. I think Douglas himself may have been looking down the road past Griswold and afraid to step much farther.

It’s kind of like, in classical music, Richard Strauss looking across the divide into the 20th century, seeing Stravinsky, etc. on the road ahead, and pulling up short.