[rayiner]

The constitution sets forth the structure of government with great specificity in a legal document. It’s quite reasonable to conclude that the Supreme Court, which is expressly conferred the “judicial power,” can decide compliance with the terms of that legal document. It’s not enumerated but it’s within the scope of the architecture of the constitution. Not everything needs to be “enumerated.” What is an “unreasonable search or seizure,” what is “cruel and unusual punishment?” The Supreme Court can decide that.

That’s completely different from “emanations from penumbras”—which is just pulling stuff out of your butt. Nothing in the Constitution makes the Supreme Court an Iran-style Guardian Council, the final arbiter on social and moral issues.

It’s no different than any other written legal document. I have a lease agreement with Toyota. That document can be interpreted—it doesn’t need to expressly enumerate everything. But that doesn’t mean you can read it to govern say how I raise my children. Just because everything doesn’t need to be enumerated doesn’t mean that some things aren’t outside the scope of the document.

[SauciestGNU]

I think it's farcical that this Court will hold the other branches to the strictly enumerated powers granted by the Constitution and yet restrains itself in no similar manner. "Emanations and penumbras" are just a mid-century aristocratic articulation of the idea that if you exercise multiple protected rights simultaneously, it follows that the sum of that conduct would also be constitutionally protected. People may disagree with the verbiage, or the outcome, but it is in fact quite easy to understand.

[rayiner]

The Court isn’t holding Congress to “strictly enumerated powers.” The constitution doesn’t say anything about the federal government being able to enact environmental legislation, but the Supreme Court has widely interpreted the Commerce Clause to allow it.

The non-delegation cases are about whether the elaborate and explicit separation of powers in the Constitution even means anything at all. The notion that you can have executive agencies making “regulations” with the force of law, and adjudicating cases through administrative judges, is already inconsistent with the idea of having three separate branches of government with clearly differentiated powers. The only question is whether that constitutional separation is mostly meaningless, or completely meaningless.

And the “emanations and penumbras” has nothing to do with “multiple protected rights.” If you are carrying a gun while protesting, that’s covered by the second and first amendments and you don’t need anything on top of that. “Emanations and penumbras” is a way to pull “rights” out of your ass that aren’t in the document. It’s classic mid-20th century white guy pontificating.