Bench Memos

Elena Kagan and the Declaration of Independence

Bastille Day provides a fit occasion to call attention once again to what was perhaps the most telling episode in Elena Kagan’s hearing:  her refusal to embrace the principle of the Declaration of Independence that human beings possess inalienable rights.  (I’m not speaking to the distinct question whether the Declaration ought to play any role in constitutional interpretation.  On that question, I’m in agreement with Matt.)  When Senator Coburn asked Kagan whether she, as an individual, believed that human beings possess inalienable rights, Kagan couldn’t bring herself to say yes.  Instead, she tried to divert the question to her role as a justice:

COBURN: I have a very specific question for you.  Do you believe it is a fundamental, preexisting right to have an arm to defend yourself?

KAGAN: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans.  And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals and not simply collectively. 

COBURN: I’m not asking 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 him?

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.

COBURN: So you wouldn’t embrace 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

KAGAN: Senator Coburn, I believe that the Constitution 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 is to enforce the Constitution and the laws. 

COBURN:  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?

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

As Brad Watson has discussed (and written about much more extensively in his book Living Constitution, Dying Faith), it’s not news that the progressive intellectual elite, of which Kagan is a part, rejects America’s founding principles.  But it’s nonetheless striking—and ought to be deeply troubling to all those who do embrace those principles and recognize that the nation that was built on them is at risk—that the same Kagan who was so lavish in praising a foreign justice as “my judicial hero” couldn’t profess her adherence to the Declaration’s proposition that we human beings have “unalienable rights.”

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