Bench Memos

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Blankley vs. Kagan


Today on the NRO homepage, the redoubtable Tony Blankley blasts Elena Kagan for her seeming indifference to the unalienable rights of human beings proclaimed in the Declaration of Independence.  For this alone, he says, she is unfit for service on the Supreme Court.

Now, I can find lots of reasons for senators to vote against Kagan’s confirmation.  But on this point taken alone, I have to side with her and against Blankley.  He quotes her exchange with Sen. Tom Coburn during her hearing, but it’s worth seeing the colloquy in full.  The discussion was launched from an exchange about the recent rulings on the Second Amendment:

Sen. Coburn:  I’m not asking you about your judicial–I’m asking you, Elena Kagan.  Do you personally believe there is a fundamental right in this area?  Do you agree with Blackstone that the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense?  He didn’t say that was a constitutional right.  He said that’s a natural right.  And what I’m asking you is, do you agree with that?

Ms. Kagan:  Senator Coburn, to be honest with you, I don’t have a view of what are natural rights independent of the Constitution.  And my job as a justice will be to enforce and defend the Constitution and other laws of the United States.

Sen. Coburn:  So you wouldn’t embrace what the Declaration of Independence says that we have certain God-given inalienable rights that aren’t given in the Constitution that are ours alone and that the government doesn’t give those to us? 

Ms. Kagan:  Senator Coburn, I believe that the Constitution [I think she meant to say Declaration--MJF] is an extraordinary document and I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice [would be] to enforce the Constitution and the law.

Sen. Coburn:  Well, I understand that. I’m not talking about as a justice; I’m talking about Elena Kagan.  What do you believe?  Are there inalienable rights for us?  Do you believe that?

Ms. Kagan:  Senator Coburn, I think that the question of what I believe as to what peoples’ rights are outside the Constitution and that laws, that you should not want me to act in any way on the basis of such a belief, if I had one–

Sen. Coburn:  I would want you to always act on the basis of a belief of what our Declaration of Independence says.

Ms. Kagan:  I think you should want me to act on the basis of law and that is what I have upheld to do if I’m fortunate enough to be confirmed as to act on the basis of law, which is the Constitution and the statutes of the United States.

The senator seems to vibrate between wanting Kagan to affirm a belief in the Declaration’s principles as a personal matter, and wanting her to affirm a responsibility for acting on those principles as a judge.  Kagan draws in like a turtle into her shell; she doesn’t want to express a view at all as a personal matter, but she is quite clearly opposed to the view that she should act to rule in a case, as a judge, on grounds drawn merely from the Declaration that cannot also find a basis in the Constitution and statutes.  And she’s quite right.

There’s an interesting partisan role reversal here.  Who said this?  “There is simply no point in nattering on about declarations of freedom and equality as though they constituted a general theory of liberty that was written into the Constitution.  They don’t and it wasn’t.”  That was Robert Bork, in the pages of NR, reviewing a book by Harry Jaffa in 1994.  In his own confirmation hearings in 1987, Bork was “borked” in part, by the Democrats, for taking precisely the view Kagan expressed in her hearings two weeks ago. 

I worry, in fact, that she doesn’t really mean it.  I think that, once confirmed, Kagan will display a jurisprudence that is not at all disciplined by adherence to the Constitution and laws, but will set off into “living Constitution” territory.  Here Blankley and I might be worrying about the same thing.  But I can’t get to that worry if the starting point is that she won’t say she believes in the Declaration as the “soul” that “animates” the Constitution.  It is all that, but from the standpoint of what we want judges to do under the Constitution, it’s a criticism that gains no traction with me.

For what it’s worth, I don’t think Blankley is right to enlist either John Marshall or Abraham Lincoln in this matter.  But that would take us farther afield.  For now I’ll stand with Robert Bork–and Elena Kagan, up to a point.


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