Posted on 02/15/2021 6:58:46 AM PST by SeekAndFind
For over 50 years, constitutional scholars, and Supreme Court justices in particular, have used “penumbral reasoning” as one means to explain rulings expanding the Constitution of the United States. Law schools describe it as “reasoning by interpolation.” To put that in graphic terms, if you’re drawing a graph on paper, reasoning by interpolation allows you to extend the line off of the paper. I’m not a constitutional scholar, but I don’t think that’s necessary to see that this can lead to a very dark place.
In legal terms, when a justice says they’re using penumbral reasoning, they’re admitting that the next thing they say is not actually written in the Constitution. They’re using it as an interpretive instrument to claim that if the Founders were alive today, “They would put what I’m about to rule in the Constitution.”
Penumbras have been debated in legal papers for many years. But in 1965, Justice William O. Douglas used penumbral reasoning in the majority opinion of Griswold v. Connecticut to declare that a right to privacy exists in the Constitution -- even though it’s not written anywhere. He then used this newly discovered “right” to find that a ban on contraceptives was therefore unconstitutional. A right to privacy seems like a logical inclusion in the constitution. But rather than five justices declaring it a right, why didn’t we add it to the Constitution with an amendment? It couldn’t have been that difficult to get ¾ of the population to agree that they wanted privacy. With an amendment, we could have avoided all the resulting controversy.
(Excerpt) Read more at americanthinker.com ...
To understand it better, let’s take a look at what a penumbra is. The dictionary definition of a penumbra is the lighter area around the edge of a shadow. When a legal scholar uses it, they’re saying that they see something emanating from the shadows of the Constitution -- it’s there, even though it’s not written. It’s a natural outgrowth of, or inherent in, something that is written. Here’s the way I understand it: If you have a few drinks, squint your eyes, and look sideways, you can kinda sorta imagine what the Founders would write, even though they didn’t write it. It’s perfectly straightforward. The justices are saying that they can read the minds of political giants that have been dead for hundreds of years. How humble of them.
Because WE SAY SO....................
Is it possible that Roe v. Wade was not an example of the Constitution evolving with society, but rather of the Supreme Court dragging society towards their worldview? How different would our debates about abortion be if ¾ of the citizenry had agreed on the legality of the practice in 1973? If you answer, “But we would have never gotten it passed,” then you’ve just made my point.
The law is “whatever”.
The illusion that we are a constitutional republic has been dispelled. That ship sailed a long time ago.
Why would any decent , rational person have any respect for an institution that without any actual tangible statements in the constitution or with the consent of the governed suddenly legalized abortion on demand allowing no restrictions even for fully formed fetuses, and just as suddenly permitted gay marriage. Did you really expect them to litigate a fraudulent election?
"Freedom of association" is assumed as extending from the 1st amendment right to peaceably assemble and the Article I power of Congress to regulate commerce (commerce being transactions between two mutually agreeable parties).
While the 4th amendment guarantees that one is "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..." this is not a general right to privacy. Penumbral reasoning combines this with the 3rd amendment "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner..." to conclude that agents of the state may not monitor what you do inside your own home.
-PJ
Our forefathers said from the beginning, before signing off on the Constitution, said there was a problem with the USSC because there was no check. Dropping the precedence cr** SHOULD BE the check.
Good article , but what the author describes as “interpolation” is actually extrapolation—estimating the course of data beyond the known extent of the graph, whereas interpolation would be estimating the course of the graph between the known data points.
My dog uses penumbral reasoning when he decides where to go to the bathroom outside.
Here is an answer from history, from a man who drafted the Massachusetts Constitution and then went on to be instrumental in the drafting of the US Constitution, using much the same frame work:
Samuel Adams, Philadelphia State House, 1st August, 1776
"If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or your arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that you were our countrymen.
Among the natural rights of the colonists are these: first, a right to life; secondly, to liberty; thirdly to property; together with the right to support and defend them in the best manner they can.
The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men."
And this quote applies to the current state of the MSM keeping America in ignorance:
In every case penumbral logic reduces the natural state of man to a loss of freedom, and a devolution of individual choice.
Yep, that's why we have the pyramid and the eye of the Divine to guard us against defilement of freedom by penumbrals, and it's resultant awareness guides to Act as a free People, uncowed by the fetters intended to bind us , perpetrated by false and designing men of a judiciary that exercises unconstitutional legislative power :
You beat me...
I-Ambush beat both of us
The Supreme Court already did this back in 1973 with Roe versus Wade! Read the 10th Amendment below:
10th AMENDMENT
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The author doesn’t know the difference between “extrapolation” and “interpolation”.
But his point is valid. Roe vs Wade is a prime example.
” To put that in graphic terms, if you’re drawing a graph on paper, reasoning by interpolation allows you to extend the line off of the paper.”
Thst would be EXTRAPOLATION not INTERPOLATION.
Great read.
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