Buddhist Catholic Contemplative Evangelical General Christian Hindu Jewish Latter-day Saint Muslim New Visions Progressive Christian

Beliefs

Topics

Columnists

Resource Library

Research Tools

Video

Podcasts

Thought Readers

Faith In Media Tracker

Newsletters

Ad-Free & Subscriber Log-In Subscription Support

Follow Patheos

Home
Evangelical
Politics and Religion
Justice Thomas Opposes “Penumbras,” Not Rights

Justice Thomas Opposes “Penumbras,” Not Rights

Last updated on: July 6, 2022 at 6:00 am by Gene Veith

0 Comments

Justice Thomas Opposes “Penumbras,” Not Rights 2022-06-30T21:15:10-04:00 Gene Veith

LOGO Patheos Explore the world's faith through different perspectives on religion and spirituality! Patheos has the views of the prevalent religions and spiritualities of the world.

Justice Clarence Thomas is being demonized for his concurring opinion in Dobbs v. Jackson Women’s Health overturning Roe v. Wade.

And even many of those who support that ruling wish he had not brought up the earlier rulings legalizing contraception and same-sex marriage, saying that since they were based on similar reasoning to Roe v. Wade, they should be reconsidered too. Saying that plays into the hands of progressives who are trying to stir up hysteria by claiming that the abortion ruling is just the first step of the court’s desire to police Americans’ bedrooms.

But what Justice Thomas was objecting to in these earlier cases was turning the “substantive due process” guarantees in the Constitution into a wild card that allows the court to create any rights that it chooses. The first time that was with the 1965 decision in Griswold v. Connecticut that legalized contraception on the grounds that the Constitution “implied” a right to privacy. Legislatures can certainly pass laws legalizing contraception, but using the Supreme Court to do that on the basis of a flimsy interpretation of the Constitution is just bad judicial reasoning.

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

Contrary to Leftist hysteria, this doesn’t mean that these things will suddenly be outlawed and we will be plunged into a Leftist nightmare world of Handmaid’s Tale pseudo-Christian theocracy: just as Dobbs doesn’t actually outlaw abortion but leaves it up to the states, so any overturning of those other rulings would throw those issues back to the states as well. it only means that the possibility has opened anew that the Supreme Court might actually base its decision on law, not on the Leftist agenda. . . .

“Substantive due process” refers to “rights” that are founded in the reasoning first enunciated in Griswold v. Connecticut: specific guarantees in the Bill of Rights have “penumbras, formed by emanations,” that create “zones of privacy.” Thus the Roe v. Wade decision referred to rights of “personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.”

A “penumbra” in this usage refers to a right that isn’t actually stated in the founding documents, but which is supposedly implied in them, at least in the opinion of Leftist Supreme Court Justices. That kind of jurisprudence can lead to literally anything being held as Constitutionally justified, and that’s just the problem. Justice Alito wrote in his Dobbs v. Jackson decision that Roe v. Wade was “egregiously wrong and on a collision course with the Constitution from the day it was decided,” precisely because it was based not on anything that was actually written in the Constitution, but on a “penumbra” that Justice Harry Blackmun and his colleagues who voted for Roe claimed to find there.

This is why the Left’s hysterical claims about the overturning of Roe v. Wade leading inevitably to the overturning of all sorts of other laws that everyone takes for granted, and leading even to the restoration of slavery, is completely baseless.

[Keep reading. . .]

In the 1960s, “legislating from the bench” was commonplace. But today’s legal scholarship has been challenging that practice. Passing de facto laws is not the role of the Judicial Branch. That is a violation of the Constitution’s separation of powers, which clearly invests that power in the Legislative Branch.

This is another example of what we discussed yesterday, the Supreme Court bringing back an emphasis on legislation, taking away the encroachment of both the Executive Branch (West Virginia v. EPA) and the Judicial Branch (Dobbs. v. Jackson) on the responsibilities of the Legislative Branch, thus restoring the Constitutional separation of powers.

The left is howling that the court and conservatives in general are trying to eliminate democracy. Actually, these rulings are restoring democracy–giving the people’s elected representatives the authority the Constitution grants them–against its usurpation by bureaucrats or judges.

Photo: Justice Clarence Thomas, Supreme Court of the United States, Public domain, via Wikimedia Commons

Constitutional rights

Justice Clarence Thomas

Legislative branch

separation of powers

Supreme Court

Previous Post

July 5, 2022

The Return of Legislation

Next Post

July 7, 2022 The Myth of Bodily Autonomy

Recent Comments

0 | Leave a Comment

"I know wired earbuds are making a comeback (I never stopped using them as I ..."

reg

Luther on Tools

"VCRs, tape decks, and cassette players are all having a revival among a segment of ..."

Tom Hering

Luther on Tools

"As a (retired) lawyer I see potential liability from sharing things like power or sharp ..."

reg

Luther on Tools

"I am not sure the items you mentioned, though disused, discontinued, discarded, could be considered ..."

reg

Luther on Tools

Browse Our Archives

Select a Category America Apologetics Art baseball Bible Blog Christ Church crime Culture Economics Education Ethics Family Food Football Government History Holidays Holy Week Humor International Islam Language Law Life Issues Literature Media Medicine Movies Music Nature News Personal Philosophy Politics psychology Reformation Religions Sacraments Science sex Social Science Sports technology television terrorism Theology Uncategorized Vocation war

Select a Month October 2026 September 2026 August 2026 July 2026 June 2026 May 2026 April 2026 March 2026 February 2026 January 2026 December 2025 November 2025 October 2025 September 2025 August 2025 July 2025 June 2025 May 2025 April 2025 March 2025 February 2025 January 2025 December 2024 November 2024 October 2024 September 2024 August 2024 July 2024 June 2024 May 2024 April 2024 March 2024 February 2024 January 2024 December 2023 November 2023 October 2023 September 2023 August 2023 July 2023 June 2023 May 2023 April 2023 March 2023 February 2023 January 2023 December 2022 November 2022 October 2022 September 2022 August 2022 July 2022 June 2022 May 2022 April 2022 March 2022 February 2022 January 2022 December 2021 November 2021 October 2021 September 2021 August 2021 July 2021 June 2021 May 2021 April 2021 March 2021 February 2021 January 2021 December 2020 November 2020 October 2020 September 2020 August 2020 July 2020 June 2020 May 2020 April 2020 March 2020 February 2020 January 2020 December 2019 November 2019 October 2019 September 2019 August 2019 July 2019 June 2019 May 2019 April 2019 March 2019 February 2019 January 2019 December 2018 November 2018 October 2018 September 2018 August 2018 July 2018 June 2018 May 2018 April 2018 March 2018 February 2018 January 2018 December 2017 November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May 2017 April 2017 March 2017 February 2017 January 2017 December 2016 November 2016 October 2016 September 2016 August 2016 July 2016 June 2016 May 2016 April 2016 March 2016 February 2016 January 2016 December 2015 November 2015 October 2015 September 2015 August 2015 July 2015 June 2015 May 2015 April 2015 March 2015 February 2015 January 2015 December 2014 November 2014 October 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013 June 2013 May 2013 April 2013 March 2013 February 2013 January 2013 December 2012 November 2012 October 2012 September 2012 August 2012 July 2012 June 2012 May 2012 April 2012 March 2012 February 2012 January 2012 December 2011 November 2011 October 2011 September 2011 August 2011 July 2011 June 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 September 2009 August 2009 July 2009 June 2009 May 2009 April 2009 March 2009 February 2009 January 2009 December 2008 November 2008 October 2008 September 2008 August 2008 July 2008 June 2008 May 2008 April 2008 March 2008 February 2008 January 2008 December 2007 November 2007 October 2007

TAKE THE

Religious Wisdom Quiz

Where did Philip meet the Ethiopian eunuch?

Select your answer to see how you score.

Jericho road Samaria road Desert road Jerusalem road

Books by This Author Books by Gene Veith

See All Titles »