Penumbras and Emanations
February 17, 2021 by Russell Neglia
When the U.S. Supreme Court ruled in Roe vs Wade in 1973, they could not find anything in the Constitution that related to abortion; it’s not there, so they had to come up with something to base their decision. They chose the 14th Amendment and then manufactured a right to privacy from it. What? What does privacy have to do with abortion? Nothing. They came up with something out of the air: Penumbras and emanations, from which they got “privacy.” Click here for an article that describes the ruling in more details. Notice here that there is no mention of what is the unborn. Is it just tissue or is it a living human being? They cleverly evaded the issue.
There are two very distinctive philosophies in the current Supreme Court. Those on the left are activist judges and those who are not are considered strict constructionists. Judges such as Alito, Kavanaugh, Gorsuch, Amy Coney Barret and Thomas, for instance, are very much strict constructionist, while the liberal judges such as Sotomayor, Breyer and Kagan are activist judges. Activist judges believe in a “living Constitution.” A living Constitution means that they can interpret the law to mean what they believe, regardless of whether it is in the Constitution or not. The famous 1973 decision of Roe v. Wade is a famous example of judicial activism run amuck. The right to an abortion is nowhere to be found in the Constitution or any of the Constitutional Amendments. In Roe they found a “right to privacy” in the 14th Amendment. However, such a right is nowhere to be found in the 14th Amendment. So how did they justify it? They justified it by coming up with what they called “ penumbras and emanations,” meaning they somehow manufactured a connection when there was none. Other famous Supreme Court decisions that used penumbras and emanations were Griswold v. Connecticut, 1965, and Planned Parenthood v. Casey, 1992.
If you’re still mystified by penumbras and emanations, so is everybody else. Translation: you can make up any connection you want from any law – in other words, plain judicial tyranny. This should scare anyone, liberal or conservative because it represents a judiciary that is out of control and not representative of anybody. Judges are not legislators; they rule on the existing law; they don’t write new law. This is what strict construction is: ruling on the existing law as written. At least this is what should happen, but it often does not. If you don’t like a law you can change it through the legislature, not through court rulings.
The August 2008 issue of Townhall.com Magazine has a brilliant article by Curt Levey titled “Holding the Line.” This article clearly describes the fallacies and outright dangers to our society that judicial activism can produce. Levey states, “judicial activism is not the failure to follow precedent. Courts must generally adhere to their past decisions and those of higher courts. But, as law professor Gary Lawson notes, “if the Constitution say X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution. Judicial activism threatens, not only the rule of law, but also the American political process and, potentially, each and every American. Because judicial activism lacks any standards, it cedes unchecked power to judges.”
Judicial activism is a favorite of the political left and the Democratic Party. Since most of what they want cannot happen through the ballot box, such as the definition of marriage in Proposition 22 in California, an activist court, overturns the will of the people and rules for homosexual marriage. Activist judges are the bread and butter of the left. A few years ago, the 9th Circuit Court ruled that in the Pledge of Allegiance,” under God” was unconstitutional, overturning the United States Congress with passed this law in 1954. The 2-1 ruling overturns the will of the entire country’s representatives. Laws are made by the legislatures of the states or the Congress of the United States, these some bodies can change them, but activist judges do not want legislatures to rule, they want to rule. This is an obvious contradiction. The job of any judge is to rule on the law, as written, not to make it. They conveniently ignore this simple axiom.
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