Bench Memos

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Re: Kagan on the Declaration of Independence


Here we are, three days out from the day on which we celebrate the adoption of the Declaration of Independence. A historic moment that gave birth to the American republic and paved the way for a Constitution and a vision of equality under the law that set the example for the world.

Unfortunately, we’re also one day removed from the moment when a nominee to the U.S. Supreme Court refused to embrace the principles of that same Declaration of Independence. During yesterday’s questioning, Senator Coburn pushed Kagan on whether she personally believed “what the Declaration of Independence says, that we have certain inalienable and God-given rights that aren’t given in the Constitution, that are ours, ours alone, and that the government doesn’t give those to us.” The most assertive answer Kagan could give was that “I don’t have a view of what are natural rights, independent of the Constitution.”

President Obama started the Kagan confirmation process by stating that “powerful interests must not be allowed to drown out the voices of ordinary citizens” and that he wanted a Court that was “more inclusive, more representative, more reflective of us as a people than ever before.” So he nominated a former dean of Harvard Law School, a product of the Upper West Side of Manhattan and the most elite schools, who has spent her entire life commuting between D.C., Manhattan, and Cambridge, working for Harvard, advising Goldman Sachs, and advising two Democratic presidents.

Should that matter, on its own? Maybe not. But it certainly does matter when the person making the nomination views the Court as a supra-democratic institution through which the values of black-robed elites can be applied to the rest of America.

It is abundantly clear that President Obama chose Kagan not on the basis of any commitment to the Constitution or the founding values expressed in the Declaration of Independence, but on the basis of her willingness to rubber stamp Obamacare and a host of other items on the liberal wish list — items that the original meaning of the Constitution inconveniently blocks.

Foreign law, check. Partial-birth Abortion, check.Obamacare, check. Homosexualmarriage, check. Gun bans, check. Declaration of Independence . . . . uh, hold on, that’s sketchy territory.

Americans of all political persuasions should be outraged at this president’s commitment to lawlessness.

– Gary Marx is the executive director of the Judicial Crisis Network.


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