Since 1965, when Justice William O. Douglas used it for the Griswold v. Connecticut opinion, Supreme Court justices have been using penumbral reasoning to interpret the Constitution. That’s where justices believe that a Constitutional right is implied (but not stated) by something else in the Constitution. Bluntly, it’s a way for them to make stuff up. It’s how the court has found God-given rights to privacy, contraception, sodomy, abortion, gay marriage … and on, and on, and on. Via penumbral reasoning, the court has decided that those things are sacred and outside the realm of public debate and elected legislation.
By taking such decisions out of the hands of US citizens, the court has twisted the Constitution into an irrational jumble of social engineering experiments, placing the republic on a collision course with a true Constitutional crisis – an America in which the Constitution is meaningless and does nothing to protect our freedoms or guide our national affairs.
When President George W. Bush appointed John Roberts to be the Chief Justice, we were promised a principled originalist that would honor the Constitution. What we got was an unprincipled hack, who will occasionally uphold the Constitution, but only if it’s not too controversial.
We found out who Roberts really was in the National Federation of Independent Business v. Sebelius decision concerning the constitutionality of the Obamacare individual mandate. He didn’t analyze the bill for constitutionality. He re-wrote it to fit his definition of constitutional. He unilaterally used an Article III branch of our government, to perform an Article I function – creating legislation. His action was unconstitutional but satisfied the liberal block of the court, and so was left to stand. His decisions have continued in that vein – based apparently on his own vision of what society wants or needs, not what the Constitution actually says. In so doing, his decisions have been muddled and incoherent.
An example of his muddled thinking can be found in his concurring opinion in the case of Dobbs v. Jackson Women’s Health Organization. In his opinion, he argued that the court should have upheld the Mississippi law, but not overturned Roe or Casey. He preferred to “find” additional rules for Roe and Casey to allow the Mississippi law to pass constitutional muster. In other words, he would have done additional legislating from the bench in an attempt to save an unstated right to abortion. He wanted to make some more stuff up, to ensure that things came out the way he wanted it.
But how can you argue that abortion is a constitutional right, and then find that this “right” can be curtailed by the states or the court? You can’t – not and still defend the Constitution. The argument is nonsensical – because nothing in the Constitution makes any of our rights conditional. They are granted by God. It is not our place as men to tamper with the gifts of God.
Our freedom of speech is not subject to the approval of a Disinformation Governance Board, our right to assembly is not terminated during a pandemic, and true rights are not subject to arbitrary rules created by Supreme Court justices. Logically, limitations can only be imposed on abortion (without due process) if we recognize that it is not actually a constitutionally protected right.
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Hence, John Roberts has demonstrated a lack of guiding principles. He has made decisions based on what he perceives society needs, not what the Constitution actually says. Observers believe he has done this to protect the court – by avoiding controversy.
But without adhering to guiding principles, Roberts has abdicated leadership. No Supreme Court justice can undermine the Constitution and also defend it. Unfortunately, Roberts is just another in a long line of justices who have used “creative interpretation” to undermine the Constitution – by insisting to Americans that it says something that is not actually written in it. Roberts and his fellow penumbral practitioners have placed us on a path rendering the Constitution irrelevant by asserting that it says whatever they say that it says. Roberts is apparently blind to the fact that he cannot render the Constitution irrelevant and still claim legitimacy for a court that is empowered by that Constitution.
This has always been John Roberts’ fatal error. By attempting to keep the court out of controversial debates (Obamacare, immigration, Election 2020) he has attempted to defend the court at the expense of the Constitution which gives it legitimacy. He never saw that without a robust Constitution, he has no authoritative court.
Our current Chief Justice has demonstrated a complete lack of guiding principles or moral authority. Without both, he cannot (and hasn’t been) leading the court. The Chief Justice has turned himself into a fringe player in his own court.
Luckily, we have another justice of unwavering principles who has become the de facto leader of the court – Justice Clarence Thomas. It’s his court now. John Roberts can choose to board the Thomas train (as he did on the Dobbs decision), but he is no longer driving the train.
President Trump gifted us an originalist (the Constitution says what it means) block on the court with the appointments of Gorsuch, Kavanaugh, and Coney-Barrett – who joined Thomas and Alito. His appointments share a reverence for the Constitution. The only additional thing they needed was principled leadership – and Thomas has filled that need.
When a majority of justices reach a decision, the Chief Justice assigns the writing of the opinion – unless he happened to vote with the minority. When that happens, the senior member of the majority assigns the writing of the opinion – which increasingly will be Clarence Thomas.
Going forward, Roberts can either agree with the originalist block, or Thomas will determine what the opinion will say anyway. That has rendered John Roberts virtually irrelevant to the process. How small has he become?
A man of unwavering principles is now leading the court, and his guiding principle is that the Constitution actually says what it means and it is for the people of the United States (not the court) to amend it as needed. Imagine that, Justice Thomas supports self-governance.
Just look at what the emerging Thomas court has accomplished so far. Just in the past week, the court has:
- Clarified that a right to bear arms is a right to self-defense both in and out of the home
- Ruled that abortion is not a God-given right, but rather is subject to debate by our elected leaders
- Found that the Constitution says nothing about the separation of church and state, and it is perfectly legal for tax dollars to be channeled to religious educational institutions
- Held that a man’s right to freedom of religion and freedom of speech are not waived while standing on school property
Thomas has gone on record as being opposed to creative interpretation of the Constitution. He refers to the practice of using penumbras and emanations to find hidden things in the Constitution as “substantive due process.” He recently said that
Any substantive due process decision is demonstrably erroneous.
He’s saying if it’s not written in the Constitution, it’s not there. If he is able to right the Supreme Court ship, we may finally be done with robed overlords finding things peeking out of dark hidden places in the Constitution. The Constitution may return to being a pact between civilized men that even laymen can understand – just as it was intended. Imagine that.
There will be controversy in the short term (as we have seen). But if Justice Thomas is successful, he may just return the court to its rightful role as an apolitical defender of the Constitution and our system of governance. Thank God for principled leadership – another Devine gift.
By John Green
John Green is a political refugee from Minnesota, now residing in Idaho. He has written for American Thinker, American Free News Network, and The Blue State Conservative. He can be followed on Facebook or reached at email@example.com.
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This article was first published by the American Free News Network.