Bench Memos

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Kagan: Constitution as Charter of “Positive Liberties”


According to this Wall Street Journal article, during her service as a law clerk to Justice Thurgood Marshall in 1987, Elena Kagan took the position that the Constitution confers so-called “positive” rights to governmental aid, not just “negative” liberties protected against governmental interference or penalty.  Specifically, with respect to one certiorari petition she expressed her “worry that a majority of this court will agree with Judge Posner that ‘the Constitution is a charter of negative rather than positive liberties.’” And with respect to another, she discussed a lower-court ruling that, relying on “evolving standards of decency,” held that the 14th Amendment (in her words) “imposes [some] affirmative obligations on state officials,” and she opined that “the holding is correct.”  (By “correct,” she evidently was referring to her best understanding of how the Constitution should be interpreted, not to the Court’s then-prevailing case law.) 

The project of re-interpreting the Constitution to confer a broad array of as-yet unrecognized “positive” rights (rather than leaving such matters to the processes of representative government) has long been a part of the Left’s agenda.

(I’m relying entirely on the article’s summary and haven’t reviewed Kagan’s memos myself.  It ought to go without saying—but, given the apparent tendency of some folks to misconstrue things, perhaps it’s necessary to say—that Kagan’s views 23 years ago don’t necessarily reflect her views today.)


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