Justice Thomas opposes “penumbras,” not rights

Judge Clarence Thomas is demonized for his consensus opinion in Dobbs v. Jackson Women’s Health and Roe v. Wade is overthrown.

And even many of those who support this ruling wish he had not addressed the previous rulings legalizing contraception and same-sex marriage, saying that since they are based on arguments similar to Roe v. Wade based, should also be reconsidered. Saying that plays into the hands of progressives who are trying to foment hysteria by claiming the abortion ruling is just the first step in the court’s desire to monitor Americans’ bedrooms.

But what Justice Thomas objected to in those earlier cases was turning the “substantive due process” guarantees in the Constitution into a wildcard, allowing the court to create whatever rights it chooses. The first time was with the decision of 1965 Griswold vs. Connecticut which legalized contraception on the grounds that the constitution “implied” a right to privacy. Lawmakers can certainly pass legislation that legalizes contraception, but using the Supreme Court to do so on the basis of a flimsy interpretation of the Constitution is poor legal reasoning.

Robert Spencer (not to be confused with Richard Spencer the neo-Nazi) explains:

Contrary to left-wing hysteria, this does not mean that these things will suddenly be banned and we will be plunged into a left-wing nightmare world The story of the maid pseudo-Christian theocracy: same Dobbs doesn’t actually ban abortion, it leaves it up to the states, so overturning those other rulings would throw those issues back onto the states as well. it just means that the possibility has reopened that the Supreme Court could actually base its decision on the law, not the left’s agenda. . . .

“Substantial due process” refers to “rights” established in the reason first set forth Griswold vs. Connecticut: Specific guarantees in the Bill of Rights have “penumbrae formed by emanations” that create “zones of privacy.” And that’s how it happened Roe v. calf The decision referred to the rights of “personal conjugal, family and sexual privacy allegedly protected by the Bill of Rights or its penumbra.”

A “penumbra,” in this usage, refers to a right not actually mentioned in the founding documents but supposedly included, at least according to left-wing Supreme Court justices. This type of jurisprudence can result in literally anything being considered constitutionally justified, and that is the problem. Judge Alito wrote in his Dobbs vs. Jackson decision that Roe v. calf was “enormously wrong and on a collision course with the Constitution from the day it was enacted” precisely because it was based not on anything actually written in the Constitution but on a “penumbra” that Justice Harry Blackmun and his colleagues voted in favour roe supposed to be found there.

Hence the left’s hysterical claims about the overthrow of Roe v. calf which inevitably leads to the overthrow of all sorts of other laws that everyone takes for granted, and even to the Restoration of Slaveryis completely unfounded.

[Keep reading. . .]

In the 1960s, “legislation from the bank” was commonplace. But contemporary jurisprudence has challenged this practice. pass de facto Laws are not the job of the judiciary. This is a violation of the constitution’s separation of powers, which clearly assigns that power to the legislature.

This is another example of what we discussed yesterday, the Supreme Court returning the focus to legislation and allowing both the executive (West Virginia v. EPA) and the judiciary (Dobbs. v. Jackson) to interfere in the The legislature eliminates responsibilities, restoring the constitutional separation of powers.

The left howls that the court and conservatives in general are trying to eliminate democracy. Actually, these are judgments Restoration Democracy – by giving the elected representatives of the people the authority that the Constitution gives them – against their usurpation by bureaucrats or judges.

Photo: Justice Clarence Thomas, United States Supreme Court, public domain, via Wikimedia Commons

Comments are closed.