New in PJ Media:
Does the Dobbs v. Jackson decision herald the end of the era of the Supreme Court legislating from the bench? In his opinion agreeing with Justice Samuel Alito’s majority decision overturning Roe v. Wade, Justice Clarence Thomas stated that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” that is, the Supreme Court decisions that discovered “rights” to contraception, homosexual activity, and same-sex marriage. 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.
Thomas explained that Griswold, Lawrence, and Obergefell needed to be reconsidered “because any substantive due process decision is ‘demonstrably erroneous.’”
“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. The prohibition of slavery is based on the Thirteenth Amendment to the Constitution; to remove a Constitutional amendment would require a new Constitutional amendment, and to get that, one would need two-thirds of the House of Representatives and the Senate, plus three-fourths of the state legislatures. What are the chances of that happening? About nil, especially since no one is advocating for the return of slavery anyway, no matter what deranged Leftist propagandists are saying.
There is more. Read the rest here.
Emilie Green says
The penumbra nonsense was a mumbo-jumbo incantation conjured up by leftist judges who knew that the invented “right” would never pass by means of the democratic process inherent in a legislature, whether in the states or in Congress.
So refreshing to hear Thomas call it out for what it has always been
Roland says
Roe v Wade was a workable compromise supported by a majority of the American people. This divisive front-loaded Falangist Supreme Court has a narrow extremist agenda and is not the least bit concerned with national unity and solidarity. It will not be pretty with all the uncontrolled guns and vigilantes monitoring women’s pregnancies.
Infidel says
Not quite. What the American people agree on is that abortion should be legal up to a point. While there are those who think that it is never justified, the majority of countries only allow it either in the First Trimester (up to 12 weeks) or a bit more than that. That is what it is in most countries in the world, such as in Europe, which is the model for the Left: only in North Korea or China are abortion laws similar to the ones we had until yesterday. At any rate, Roe v Wade was bad law, since it was created out of whole cloth instead of being legislated in Congress or in the states
Here in the US, it was unrestricted – to the point that you even had partial birth abortions, and the record – our former governor in Virginia Ralph Northam suggesting that even if a baby survived an abortion attempt and was born, it could be kept “comfortable” on a table while its parents decided what to do w/ it. I was watching Newsmax yesterday, and it was pointed out that a majority of Americans do want abortion to be legal in the first trimester, and that the number decreases the further one goes down the pregnancy timeline. In other words, what some states have done – activated laws that would automatically come into effect the moment Roe got overturned – is something that some people fear is over-compensating
In Virginia, Glenn Youngkin proposed yesterday something like a 14 week limit, which is something I agree w/. In short, I’m w/ the states that have cutoffs either after a heartbeat detection or after a pain capable threshold point in time is determined. And while I support rape/incest exceptions, that too has to be within that window
As for your last point, the violence on this issue has almost always come from the Left, and we are seeing it now. There have been no threats to Planned Parenthood, but plenty of firebombings of pro-life pregnancy counseling centers as well as churches. It’s therefore an exercise in sophistry to claim that the threat comes from gun toting vigilantes who have nothing better to do than monitor women’s pregnancies
Infidel says
Another point: the Supreme Court is supposed to determine whether a law passed is in accordance w/ the constitution or not. It’s not their job to maintain national unity, which is impossible anyway after a whole generation of Leftist teachers who have taught our kids to hate this country
Wellington says
A workable compromise? How do you compromise on the survival of the fetus? Moreover, even those who were ardently pro-choice, for example Ruth Bader Ginsburg and Lawrence Tribe, knew full well that the Roe decision was bogus. Ginsburg called it “shaky” and Tribe called it a “smokescreen.”
Resting the Roe decision on the 14th Amendment Due Process clause was always, from the get-go, insupportable. Reconsider.
And as for your derogatory comment about the “Falangist Supreme Court,” this is an idiotic statement. Franco’s Falange cared nothing about press freedom, freedom of speech or a multi-party system. It is comments like yours that only ensure that those who oppose you will do so all the more knowing how ignorant and hyperbolic you are.
gravenimage says
+1
CogitoErgoSum says
So there are “emanations” in the Constitution that form “penumbras” of rights that exist even though the words for those rights are not actually there. It’s almost as if those unwritten rights are like little children within the womb of their mother, the Constitution, slowly developing over time and waiting to be born at the right moment. And to turn it around a child within its mother’s womb is like the penumbra of an emanation from its mother, a human being, waiting to be born at the right moment – except it is a wrong to abort a penumbra of the Constitution but it is okay to abort the penumbra of a human being. Wait! Something does not seem quite right about this line of thinking. It leads me to a place where unwritten words are real but human babies in the womb are not. Maybe it has to do with being able to see things that are not there and not being able to see things that really are there. I’ll have to think about it some more but I suspect the logic of Bizarro World must be applied for it all to make sense.