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Replacing Kennedy: The frightened church of Penumbras and Emanations

Written By | Jul 4, 2018

WASHINGTON: In the coming weeks, Americans will receive a valuable lesson on penumbras and emanations that really motivate the American left. And it concerns more than getting its hands on other people’s money. This will become crystal clear when President Donald J. Trump announces who he is replacing Kennedy on the U.S. Supreme Court (SCOTUS) with. As previous Justice William Douglas ruled in Griswold v. Connecticut, stating a state’s ban on the use of contraceptives violated the right to marital privacy writing:

“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”

Penumbras and Emanations, Replacing Kennedy, SCOTUS, Stephen Nemo

Retiring Supreme Court Justice Anthony Kennedy. CBS News screen grab.

Democrats are concerned that a jurist with a strict adherence to The Bill of Rights and Constitution could not possibly vote on issues based on the emotionally charged cries of the left. Hot button issues like open borders, eliminating ICE, Gay marriage, abortion on demand, or the erasure of equal rights in favor of identity rights.

None of which are addressed by the Constitution.

Which means those decisions are, as Justice Holmes defined the penumbra doctrine, are made considering the “outer bounds” of authority emanating from a law.” Or the issuance of laws based on arbitrary rights.

An imaginative Constitution
Penumbras and Emanations, Replacing Kennedy, SCOTUS, Stephen Nemo

Jim Obergefell, the subject of the landmark Obergefell v. Hodges ruling. PBS News Hour screen grab.

Writing in Time magazine, Jim Obergefell, the subject of the landmark Obergefell v. Hodges ruling, which declared same-sex marriage a “constitutional right,” saying he and his late spouse….

“… were simply asking for ‘equal dignity’ in the eyes of the law when we sought to have our union recognized by our government.

“The opinion also says that the Constitution grants us that right. But now that Justice Kennedy has announced his retirement, it’s hard not to be afraid that it is going to be taken away.”

That last sentence speaks volumes.

It’s an admission that the Constitution is silent on the question of same-sex marriage. Its constitutionality, therefore, exists solely in the wild imagination of one Justice Anthony Kennedy. Kennedy who was the deciding vote among the black-robed, perpetual, nine-person constitutional convention.

His single vote created the court majority that forced same-sex marriage down the throats of 310 million Americans. And for many in the gay community, it signaled that government recognition also mandated every American celebrate their victory.

That takes the cake
Penumbras and Emanations, Replacing Kennedy, SCOTUS, Stephen Nemo

Colorado Christian cakemaker Jack Phillips. CBS News screen capture.

And so, lowly cake maker Jack Phillips was singled out by the Colorado Human Rights Commission for refusing to make a wedding cake for a gay couple, which he believed violated his religious principles.

In other words, a so-called “right” conjured out of whole cloth found itself in direct conflict with the clearly written First Amendment’s

…right to worship God unencumbered by the dictates of the political majority, their elected representatives or nine busybody high priests ensconced in their replica Mount Olympus…

Ironically, it fell to Justice Kennedy to write the majority opinion in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission.

Kennedy said the Colorado commission’s decision to single out cakemaker Jack Phillips for religious persecution “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

Penumbras and emanations and Constitutional contradictions

But that is precisely what Kennedy did when he and his fellow justices used the power of the high court to “violate the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

Realizing this was an egregious constitutional contradiction of his own making, Kennedy disingenuously added,

“The outcome of cases like this in other circumstances must await further elaboration in the courts.”


Why did he kick this particular can down the road? Particularly when we are constantly told these nine bench-warmers hold within their heads the collective wisdom of the ages? No wonder Kennedy is retiring.

He finally realized he can’t reconcile nebulous “penumbras and emanations” with the concrete logic of the Constitution’s written word.
Catholics need not apply

When President Trump recently nominated Amy Coney Barrett to the 7th U.S. Circuit Court of Appeals, Sen. Dick Durbin (D-Ill.) asked:

“Do you consider yourself an orthodox Catholic?”

Penumbras and Emanations, Replacing Kennedy, SCOTUS, Stephen Nemo

Sen. Dianne Feinstein. CBS News screen capture.

California’s Sen. Dianne Feinstein fleshed out the meaning to Durbin’s question:

“I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”

Feinstein and Durbin argue that we should ignore the dogmatic intransigence of “large numbers of people” who worship before the altar of Penumbras and Emanations. The invisible, Constitutional articles of faith that are as dogmatically held as those of any “orthodox Catholic.”

And with a lot less substance to back them up.

A new religious order

The church of Penumbras and Emanations does not believe in, as Thomas Jefferson stated in the Declaration of Independence, the “self-evident” truth that we are entitled to “Life.” That is why Penumbras and Emanations came into play in Roe v. Wade, which discovered an unwritten “right” to kill unborn children in the U.S. Constitution, in the same way, it found an unwritten “right” to same-sex marriage.

What we are about to see in the confirmation process to fill the Kennedy vacancy is a moral battle.

The upcoming struggle between two moral orders
Penumbras and Emanations, Replacing Kennedy, SCOTUS, Stephen Nemo

Portrait of Britain’s King George III by Johann Zoffany.

A battle between Constitutional “originalists” who agree with Jefferson’s assertion that we are “endowed by our Creator with certain unalienable rights” and Penumbra and Emanation cultists who assert a kingly ability to conjure arbitrary “rights” that conflict and endanger the protections enshrined in the written Bill of Rights.

“It is the eternal struggle between these two principles – right and wrong – throughout the world,” said Abraham Lincoln. “They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle. The one is the common right of humanity, and the other the divine right of kings.”

Yes, divine and kingly “rights” hidden within the Penumbras and Emanations.


Top Image: Members of the U.S. Supreme Court. Photo: U.S Supreme Court.

Steven M. Lopez

Steven M. Lopez

Originally from Los Angeles, Steven M. Lopez has been in the news business for more than thirty years. He made his way around the country: Arizona, the Bay Area and now resides in South Florida.