The Fourteenth Amendment Due Process Clause

By Nathan S. Chapman and by Kenji Yoshino @ National Constitution Center

Editor's Note:  I don't have permission to publish this in full, but given what's going on with SCOTUS all of a sudden discovering entirely too many decisions from the court over the decades have absolutely no basis in the Constitution, and the 14th Amendment is behind so much of it, I've chosen to publish this in full.  If the authors object, I will alter this to a link, but this is an important piece in fitting together the pieces of the puzzle of understanding over what's happened with regards to the decades of decisions convoluting America's values and rights creating rights and privileges out of thin air justifying those decisions with penumbras and emanations of the Constitution.  And important in understanding what might be part of future decisions in the effort to make the courts understand it's not their job to legislate from the bench.  RK

The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished—and most controversial. Consider the following rights that the Clause guarantees against the states:

• procedural protections, such as notice and a hearing before termination of entitlements such as publicly funded medical insurance;
• individual rights listed in the Bill of Rights, including freedom of speech, free exercise of religion, the right to bear arms, and a variety of criminal procedure protections;
• fundamental rights that are not specifically enumerated elsewhere in the Constitution, including the right to marry, the right to use contraception, and the right to abortion.

The Due Process Clause of the Fourteenth Amendment echoes that of the Fifth Amendment. The Fifth Amendment, however, applies only against the federal government. After the Civil War, Congress adopted a number of measures to protect individual rights from interference by the states. Among them was the Fourteenth Amendment, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”

When it was adopted, the Clause was understood to mean that the government could deprive a person of rights only according to law applied by a court. Yet since then, the Supreme Court has elaborated significantly on this core understanding. As the examples above suggest, the rights protected under the Fourteenth Amendment can be understood in three categories: (1) “procedural due process;” (2) the individual rights listed in the Bill of Rights, “incorporated” against the states; and (3) “substantive due process.”

Procedural Due Process

“Procedural due process” concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property. The key questions are: What procedures satisfy due process? And what constitutes “life, liberty, or property”?

Historically, due process ordinarily entailed a jury trial. The jury determined the facts and the judge enforced the law. In past two centuries, however, states have developed a variety of institutions and procedures for adjudicating disputes. Making room for these innovations, the Court has determined that due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank (1950).

With regard to the meaning of “life, liberty, and property,” perhaps the most notable development is the Court’s expansion of the notion of property beyond real or personal property. In the 1970 case of Goldberg v. Kelly, the Court found that some governmental benefits—in that case, welfare benefits—amount to “property” with due process protections. Courts evaluate the procedure for depriving someone of a “new property” right by considering: (1) the nature of the property right; (2) the adequacy of the procedure compared to other procedures; and (3) the burdens that other procedures would impose on the state. Mathews v. Eldridge (1976).

“Incorporation” of the Bill of Rights Against the States

The Bill of Rights—comprised of the first ten amendments to the Constitution—originally applied only to the federal government. Barron v. Baltimore (1833). Those who sought to protect their rights from state governments had to rely on state constitutions and laws.

One of the purposes of the Fourteenth Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the Fourteenth Amendment Privileges or Immunities Clause as a source of robust individual rights against the states. The Slaughter-House Cases (1873). Since then, the Court has held that the Due Process Clause “incorporates” many—but not all—of the individual protections of the Bill of Rights against the states. If a provision of the Bill of Rights is “incorporated” against the states, this means that the state governments, as well as the federal government, are required to abide by it. If a right is not “incorporated” against the states, it applies only to the federal government.

A celebrated debate about incorporation occurred between two factions of the Supreme Court: one side believed that all of the rights should be incorporated wholesale, and the other believed that only certain rights could be asserted against the states. While the partial incorporation faction prevailed, its victory rang somewhat hollow). As a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states. The exceptions are the Third Amendment’s restriction on quartering soldiers in private homes, the Fifth Amendment’s right to a grand jury trial, the Seventh Amendment’s right to jury trial in civil cases, and the Eighth Amendment’s prohibition on excessive fines.

Substantive Due Process

The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or “enumerated”) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given.

The Court’s decision to protect unenumerated rights through the Due Process Clause is a little puzzling. The idea of unenumerated rights is not strange—the Ninth Amendment itself suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.” The most natural textual source for those rights, however, is probably the Privileges and Immunities Clause of the Fourteenth Amendment, which prohibits states from denying any citizen the “privileges and immunities” of citizenship. When The Slaughter-House Cases (1873) foreclosed that interpretation, the Court turned to the Due Process Clause as a source of unenumerated rights.

The “substantive due process” jurisprudence has been among the most controversial areas of Supreme Court adjudication. The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation, given that, by definition, unenumerated rights do not flow directly from the text of the Constitution.

In the early decades of the twentieth century, the Court used the Due Process Clause to strike down economic regulations that sought to better the conditions of workers on the ground that they violated those workers’ “freedom of contract,” even though this freedom is not specifically guaranteed in the Constitution. The 1905 case of Lochner v. New York is a symbol of this “economic substantive due process,” and is now widely reviled as an instance of judicial activism. When the Court repudiated Lochner in 1937, the Justices signaled that they would tread carefully in the area of unenumerated rights. West Coast Hotel Co. v. Parrish (1937).

Substantive due process, however, had a renaissance in the mid-twentieth century. In 1965, the Court struck down state bans on the use of contraception by married couples on the ground that it violated their “right to privacy.” Griswold v. Connecticut. Like the “freedom of contract,” the “right to privacy” is not explicitly guaranteed in the Constitution. However, the Court found that unlike the “freedom of contract,” the “right to privacy” may be inferred from the penumbras—or shadowy edges—of rights that are enumerated, such as the First Amendment’s right to assembly, the Third Amendment’s right to be free from quartering soldiers during peacetime, and the Fourth Amendment’s right to be free from unreasonable searches of the home. The “penumbra” theory allowed the Court to reinvigorate substantive due process jurisprudence.

In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to abortion (1973), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015). The Court has also declined to extend substantive due process to some rights, such as the right to physician-assisted suicide (1997).

The proper methodology for determining which rights should be protected under substantive due process has been hotly contested. In 1961, Justice Harlan wrote an influential dissent in Poe v. Ullman, maintaining that the project of discerning such rights “has not been reduced to any formula,” but must be left to case-by-case adjudication. In 1997, the Court suggested an alternative methodology that was more restrictive: such rights would need to be “carefully descri[bed]” and, under that description, “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg (1997). However, in recognizing a right to same-sex marriage in 2015, the Court not only limited that methodology, but also positively cited the Poe dissent. Obergefell v. Hodges. The Court’s approach in future cases remains unclear.

Stare Decisis is Like a Street Sign: "Drive Only On the Left!" Part 1

By Rich Kozlovich Originally published on 7/15/2018 

I just read Bastasch’s article, Brett Kavanaugh put a serious damper on EPA power grabs, which gave me more confidence in this man, at least until he ended the article saying this about overturning the Endangerment Finding. He says:

"However, Adler (a professor at Case Western Reserve University School of Law) said it’s unlikely the court overturn Massachusetts v. EPA because of its strong tradition of “stare decisis” — latin for “to stand by things decided.” “It’s one thing to overturn a bad constitutional decision because Congress can’t fix that,” Adler said, though he added a Kennedy-less court could narrow the application of Massachusetts v. EPA. “It’s not going to be overturned,” he said."

For a law professor to say such a thing on such an issue is clearly demonstrating his bias in my opinion, especially since the adoration to "stare decisis" is a one way street for leftists.

I’m not sure how Kavanaugh would vote on a new Endangerment Finding case, but we need to get rid of this idea of “stare decisis” as the deciding factor.

These leftist justices have overturned “stare decisis” over and over again, and have been lauded by the very leftists who claim to adore the concept. Let's try and get this right - "stare decisis" - is not written in stone and the only reason to openly support it as something that’s “sacred” is nothing more than a public relations scam by anyone involved in politics or law. The left only 'adores' the concept if someone supports any of the leftist decisions that overturned "stare decisis" decisions of the past. Any effort to overturn leftist decisions that have no Constitutional basis other than what's called the "penumbra of the Constitution" is sacrilege to the law and the Constitution according to the left.

"In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......."

An open ended concept that allows for abuse!

The word penumbra originally was a scientific term "created to describe the shadows that occur during eclipses." And I think the word shadows is more than appropriate when its used in relationship with the Constitution.   The "penumbra" of the Constitution "implies" rights not actually written in the Constitution, and in fact the concept allows for the ability to define, redefine and even ignore the actual and simple language of the Constitution, all of which has been done by the federal judiciary at every level. All in an effort to make the Constitution a "Living Document".

The problem with that is all the "living" changes are determined by the wrong branch of government. The Constitution never gave the federal judiciary to right to "legislate" via some indefinable term that's been adopted by those whose one desire is to destroy the Constitution. The unelected Judiciary have overstepped their Constitutional bounds into the territory the Constitution assigns to the Legislature.

It's always amazing how devoted progressives, socialists, leftists and liberals are to the Constitution, when it's convenient. But in reality, this is the document they've called a dusty old document and many early Progressives like Teddy Roosevelt and Woodrow Wilson considered an "impediment to human progress".  Nothing has changed!  Any concerns they express about devotion to "stare decisis" is strictly politics.

Now, that brings me back to green issues, Kavanaugh and the Supreme Court. Here’s one thing I don’t think many know and I think could be a big factor in deciding any green issue that comes before SCOTUS.

Who was Justice Neil Gorsuch’s mother?

Ann Burford Gorsuch, a one time head of the EPA during the Reagan administration who was eviscerated by the left and the green movement in and out of government, and those she called "pack journalists." I have no doubt about his view of the leftist swamp and their green misanthropic allies.

Will that have an impact on Kavanaugh?    I don't know, except I have no doubt Gorsuch has a much clearer understanding of all these green issues and the people involved than any of the rest.  And I'm confident he has the ability to explain them properly.

As for Breyer, Ginsburg, Kagan and Sotomayor? They're hopeless. They couldn't be convinced day was light or night was dark if it wasn't supportive of some kind of leftist clabber or other.  Not a one of them pass the test of unbiased open mindedness the left demands of Trump's appointments or a rational understanding of what the Constitution really says, often times creating policies that have shattered generations of Americans. 

However, they support those who believe the following:

• 58% of Democrats believe in UFOs, but only 32% are proud to be American. Only 37% of Republicans believe in flying saucers, but a full 80% are proud of their country.
• Almost twice as many Democrats are willing to believe in being abducted by space aliens than in their country. Hillary Clinton had promised that if elected, she would find out the truth about the little green men and suggested that the planet had already been visited by aliens. "Maybe we could have, like, a task force to go to Area 51," she suggested.
• The chair of Hillary Clinton’s campaign, John Podesta, an obsessive UFO buff, appeared on an episode of Ancient Aliens which claimed that Hillary Clinton was defeated to suppress the truth about space aliens.
• Democrats are the party least likely to know that the earth revolves around the sun once a year. Only between 48% to 27% of the enlightened supporters of the Party of Science actually knew this.
• 45% of liberals believe in astrology.
• Three-quarters of Democrats believe that thoughts can influence the physical world.
• Over half believe in ghosts.
• Almost a third of Democrats, twice as many as Republicans, believe in “spiritual energy”. 35% of liberals compared to 18% of conservatives are believers.
• A fifth of Democrats fear the “evil eye”.
• If you can name a superstition, knocking on wood, walking under ladders or stepping on a crack, polls show that Democrats are more likely to believe in it.
• Democrats are 60% more likely to fear black cats than Republicans (so much for the anti-racist party)
• 33% more likely to fear the number 13.
• The rational and enlightened elite who want to make all our decisions are also 54% more likely to think that opening an umbrella indoors is bad luck.
• A fifth of Democrats believe it’s unlucky to walk under a ladder.
• Nearly a fifth believe in fortune telling.

But then.......to be on the left is a one way street, and being open minded to the left means being so open your brains fall out.

Editor's Note:  I've still not been able to fix the problem I'm having with Blogger, including having the links work, so copy and past this link to the article and for some reason it will open everything.  http://paradigmsanddemographics.blogspot.com/2018/07/stare-decisis-is-like-street-sign-drive.html

 

Stare Decisis is Like a Street Sign: "Drive Only On the Left!", Part II

By Rich Kozlovich  Published 2019.

The Washington Post reported that the Supreme Court’s conservatives overturn precedent. Of course this means liberals are now going to start panicking because they have to wonder which ruling will they overrule next.  The article went on to say:

"The Supreme Court’s conservative majority overturned a 41-year-old precedent Monday, prompting a pointed warning from liberal justices about “which cases the court will overrule next.”

It was a 5/4 decision overruling a 41 year precedent regarding the concept that States had sovereign immunity from other States and whether they could be hauled into court by other States. The 1979 ruling claimed “there is no constitutional right to such immunity."

The article goes on to say:

The “new conservative majority conservative majority overruled that decision, saying there was an implied right in the Constitution that means states “could not be hauled involuntarily before each other’s courts,” in the words of Justice Clarence Thomas, who wrote Monday’s decision. Thomas acknowledged the departure from the legal doctrine of stare decisis, in which courts are to abide by settled law without a compelling reason to overrule the decision.”  But he said the court’s decision four decades ago in Nevada v. Hall “is contrary to our constitutional design and the understanding of sovereign immunity shared by the states that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent.”

Justice Breyer claimed it was “dangerous” for the court to change the rules with just five justices in agreement. Breyer believes “Stare decisis requires us to follow Hall, not overrule it,” In short, stare decisis should hold no matter how flimsy the grounds were for the original decision, or how radical was the design of the Court at that time. Breyer worried:

“Today’s decision can only cause one to wonder which cases the court will overrule next.” 

Dangerous!  Really?  To whom?  There is a compelling reason for overturning these kinds of rulings and that is the continued destructive direction the federal government and the federal judiciary have taken that have consistently eroded what was clearly understood as state's rights from the founding of the Constitution. 

The fact some things weren't spelled out was because some things were clearly understood by the founders, the States and society as a whole, and it never occurred to them it had to be spelled out.  

Abortion became a right because the Supreme Court found a right of privacy in the "penumbra of the Constitution" that allows mothers to murder their unborn innocent children.  That never appears in the Constitution, or can anyone demonstrate how it's implied in the Constitution through the practice of time, and this is a "right" the Founders would have been aghast at.  If you read the Constitution you will find there is no section defined as the "penumbra".   Tell you what.....we'll come back to that.

In my February 21, 2019 article, Stare Decisis is Like a Street Sign: "Drive Only On the Left!", I stated:

These leftist justices have overturned “stare decisis” over and over again, and have been lauded by the very leftists who claim to adore the concept. Let's try and get this right - "stare decisis" - is not written in stone and the only reason to openly support it as something that’s “sacred” is nothing more than a public relations scam by anyone involved in politics or law. The left only 'adores' the concept if someone supports any of the leftist decisions that overturned "stare decisis" decisions of the past.

But I have to think Judge Thomas’ view has logic and history on his side when he says:

“the states’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.”

Although isn’t directly addressed in the Constitution it certainly is implied. He says:

“there are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice.”

Leftist judges have been overturning rulings and understandings that stood for decades.  All done without a whisper of concern about precedent, especially the precedents established by history and practice for over 150 years. They have twisted the plain language of the Constitution to create rights that were never stated in the Constitution, claiming these rights were "implied" by the "penumbra" of the Constitution.

I went on to say in my article:

"Any effort to overturn leftist decisions that have no Constitutional basis other than what's called the "penumbra of the Constitution" is sacrilege to the law and the Constitution according to the left."  

"In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......."

"An open ended concept that allows for abuse!"

It's time for those abuses to be overturned. 

Clarence Thomas identifies the greatest danger in America

September 18, 2021 By Andrea Widburg

Talk to me for just a few minutes about my life as a lawyer and I will tell you that, without question, the worst thing about being a litigator is activist judges. It turns out that Clarence Thomas shares my concern, for he fears the power that the Supreme Court holds.

In a speech at the University of Notre Dame, the brilliant jurist told his audience that “The court was thought to be the least dangerous branch and we may have become the most dangerous,” adding, “And I think that’s problematic.” Indeed.

Article III of the Constitution of the United States establishes a “supreme Court.” It lists those matters that fall within the Court’s jurisdiction, including “all Cases, in Law and Equity, arising under this Constitution....” While Art III limits somewhat the nature of the cases the Supreme Court may hear, it does not impose any checks or balances on the Supreme Court’s power.

Then, in 1803, Chief Justice John Marshall extended the Court’s power, holding that Article III’s grant of authority inevitably gave the Court the power to overturn unconstitutional legislation. The result is a Supreme Court that has freely rewritten the Constitution to achieve political ends—and turned the Court itself from what should be a neutral judicial institution into one that has become the partisan center of D.C.

The problem began with the fact that, while Articles I and II, as well as the Bill of Rights, had roots in long-established British rights, some stretching back as far as 1215 and the Magna Carta, the Founders started from scratch with the Supreme Court. Alexander Hamilton, in Federalist No. 78, believed the judiciary would be the “least dangerous branch of government,” one that was “feeble” because Congress had legislative power and the people would be the forces behind amending the Constitution.

The one person who clearly saw how the federal judiciary could become tyrannical was Judge Robert Yates, aka Brutus, who tackled the Supreme Court in Anti-Federalist 78-79:

The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. 

[snip]

The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed under them. But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. 

Judge Yates was prescient. Thanks to the Supreme Court’s unfettered power to write into the Constitution principles that neither the people nor their legislature support, we have unlimited abortion based on emanations of penumbras; same-sex marriage based on feelings and self-respect; and transgender rights read into the Civil Rights Act of 1964 because one Justice (Gorsuch) thought mental illness was the same as “sexuality” (and again, there is no scientific authority supporting transgenderism as a real phenomenon separate from mental illness).

Those are the biggies that have fundamentally shifted society in ways beloved of Marxists.........To Read More....

The Supreme Court has taken up residence in the swamp

May 12, 2021 John Green

The Supreme Court was originally envisioned as a nonpartisan third branch of the government. With lifetime appointments and a mission to defend the Constitution, it was believed that the Court would remain above the political fray. 

But about 50 years ago, the court decided that with penumbras and emanations, it could discover things in the Constitution that are not actually written there. Justices were no longer merely interpreting the Constitution; they were rewriting it, under the guise of interpretation, to suit the political leadership that had appointed them. 

With this foray into politics, the Supreme Court inevitably became part of the swamp. The justices are no longer scholars who understand the Constitution and its supporting documents; now they're political players. That's why Supreme Court appointments have become so contentious. 

As political players, the justices have used their newfound power to "discover" a whole host of "rights" that are not actually written in the constitution. They've discovered: 

• A right to privacy A right to abortion 
• A right to same-sex "marriage" 
• A right for the government to seize private property for the benefit of private enterprises 
• A right for the government to regulate commerce within states 

 The issue isn't whether any of these things is good or bad. The issue is that the voters, via their elected representatives, should have been allowed to make these decisions..........To Read More....

My Take - Fundamental rights as outlined in the Constitution is being blind sided with their rulings.  Rulings that should have been absolute and unambiguous are not being made by these swampers, and it's time to pass a 28th Amendment with age and term limits.  

Trump's 'penumbras' draft

February 15, 2021 By Lynne Lechter

 

Originally created as an astrological term in the 17th century, the Supreme Court decision, Griswold v Connecticut, 1965, introduced the meaning of 'penumbra' as the individual’s right to privacy and as a legal metaphor for Constitutional powers of the United States’ government.  The reasoning goes that the implied powers are granted from extant (or, existing) powers - thus the penumbra. 

Trump’s penumbras extol the reverse - an insistence that structural power resides in the citizenry - a citizenry from whom power is delegated to government in exchange for an orderly society, free from harm, and bestowed with the bundle of rights contained in our founding documents. In other words, the center of power gets its energy from the people surrounding it.

While President Trump is no longer in power, the power of his leadership pounds mightily in the hearts and minds of his followers. Unbowed by two sham impeachments and a totally biased press, they know he is on their side.  For all his pugnaciousness and self-promotion, he delivered.  He delivered on his campaign promises and he never wavered in problem solving for the betterment of the American people. That Trump loves America and has held a decades long consistent vision of how to make the American citizen’s life better, cannot be denied. He has also pulled back the curtain on the deep nastiness and brutality that hallmark today’s Democrat Party.  And for that, D.C. will never forgive him..........To Read More.....

Stare Decisis is Like a Street Sign: "Drive Only On the Left!", Part II

By Rich Kozlovich

The Washington Post reported that the Supreme Court’s conservatives overturn precedent. Of course this means liberals are now going to start panicking because they have to wonder which ruling will they overrule next.  The article went on to say:

"The Supreme Court’s conservative majority overturned a 41-year-old precedent Monday, prompting a pointed warning from liberal justices about “which cases the court will overrule next.”

It was a 5/4 decision overruling a 41 year precedent regarding the concept that States had sovereign immunity from other States and whether they could be hauled into court by other States. The 1979 ruling claimed “there is no constitutional right to such immunity."

The article goes on to say:

The “new conservative majority conservative majority overruled that decision, saying there was an implied right in the Constitution that means states “could not be hauled involuntarily before each other’s courts,” in the words of Justice Clarence Thomas, who wrote Monday’s decision. Thomas acknowledged the departure from the legal doctrine of stare decisis, in which courts are to abide by settled law without a compelling reason to overrule the decision.”  But he said the court’s decision four decades ago in Nevada v. Hall “is contrary to our constitutional design and the understanding of sovereign immunity shared by the states that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent.”

Justice Breyer claimed it was “dangerous” for the court to change the rules with just five justices in agreement. Breyer believes “Stare decisis requires us to follow Hall, not overrule it,” In short, stare decisis should hold no matter how flimsy the grounds were for the original decision, or how radical was the design of the Court at that time. Breyer worried:

“Today’s decision can only cause one to wonder which cases the court will overrule next.” 

Dangerous!  Really?  To whom?  There is a compelling reason for overturning these kinds of rulings and that is the continued destructive direction the federal government and the federal judiciary have taken that have consistently eroded what was clearly understood as state's rights from the founding of the Constitution. 

The fact some things weren't spelled out was because some things were clearly understood by the founders, the States and society as a whole, and it never occurred to them it had to be spelled out.  

Abortion became a right because the Supreme Court found a right of privacy in the "penumbra of the Constitution" that allows mothers to murder their unborn innocent children.  That never appears in the Constitution, or can anyone demonstrate how it's implied in the Constitution through the practice of time, and this is a "right" the Founders would have been aghast at.  If you read the Constitution you will find there is no section defined as the "penumbra".   Tell you what.....we'll come back to that.

In my February 21, 2019 article, Stare Decisis is Like a Street Sign: "Drive Only On the Left!", I stated:

These leftist justices have overturned “stare decisis” over and over again, and have been lauded by the very leftists who claim to adore the concept. Let's try and get this right - "stare decisis" - is not written in stone and the only reason to openly support it as something that’s “sacred” is nothing more than a public relations scam by anyone involved in politics or law. The left only 'adores' the concept if someone supports any of the leftist decisions that overturned "stare decisis" decisions of the past.

But I have to think Judge Thomas’ view has logic and history on his side when he says:

“the states’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.”

Although isn’t directly addressed in the Constitution it certainly is implied. He says:

“there are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice.”

Leftist judges have been overturning rulings and understandings that stood for decades.  All done without a whisper of concern about precedent, especially the precedents established by history and practice for over 150 years. They have twisted the plain language of the Constitution to create rights that were never stated in the Constitution, claiming these rights were "implied" by the "penumbra" of the Constitution.

I went on to say in my article:

"Any effort to overturn leftist decisions that have no Constitutional basis other than what's called the "penumbra of the Constitution" is sacrilege to the law and the Constitution according to the left."  

"In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......."

"An open ended concept that allows for abuse!"

It's time for those abuses to be overturned.