Bench Memos

NRO’s home for judicial news and analysis.

Kagan Iffy on Declaration of Independence


Kagan just had a painful exchange with Sen. Coburn during which she refused to embrace the idea that human beings possess certain inalienable rights preexisting the U.S. Constitution. She said that such rights are irrelevant to her work as a judge because she would only be interpreting the Constitution and the laws of this country. She must have forgotten the portion of the Bill of Rights reserving certain rights to the people — the 10th Amendment. It is more than troubling that she might not even embrace the principles of the Declaration of Independence, or Lincoln’s argument that the Constitution was not alone the primary cause of our great prosperity, but a picture frame of silver around the Declaration, the apple of gold. As Lincoln put it, “The picture [the Constitution] was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple — not the apple for the picture.”

These are not right-wing ideas. This used to be orthodoxy. Americana. Civics. Apple Pie . . . It’s only a few days before Independence Day. This is not the time for a potential Supreme Court justice to be iffy on the Declaration of Independence. So much for the right to Life, Liberty and the Pursuit of Happiness.


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