Bench Memos

By Her Own Words, Kagan Will Violate Her Oath

The Supreme Court confirmation hearings for Elena Kagan provided key exchanges about the Commerce Clause, natural rights, and other issues that have convinced me to vote against her nomination. Based on her own testimony, she’ll violate her oath as soon as she’s sworn in.

The hearings, though, were not merely about Elena Kagan per se but about the political culture and philosophy that shaped her views. Her answers exposed profound flaws in the prevailing Big Government wisdom of the Supreme Court and Washington over the past few decades.

When I asked Kagan whether the Constitution gave Congress the authority to tell people to eat their fruits and vegetables, she answered with appropriate humor. “That would be a dumb law,” she quipped. True enough. Her response was humorous because the underlying premise is absurd both as a matter of common sense and law. Of course, Kagan and everyone else knew I was asking a proxy question about the new health law’s individual mandate and the founder’s intent regarding the Commerce Clause.

What is less humorous is the fact that as a Supreme Court justice, she would signal that Congress does in fact have the right to tell people what to eat and, by implication, whether to buy health insurance. With Kagan on the Court, Congress and the executive branch may succeed at sweeping away whatever limitations remain on its power to micromanage the decisions of states and individuals.

In her testimony, it was clear that Kagan subscribes to the progressive view that the wrongly decided precedents of the Supreme Court are more important the clear intent of the Constitution. Does anyone seriously believe that when the Founders gathered in Philadelphia 220 years ago they were aspiring to control the buying decisions of individual consumers from Washington? They were arguing for the opposite and implored future Courts to slap down any law from Congress that expanded the Commerce Clause.

In “Federalist Paper 45,” James Madison wrote: “The powers delegated by the proposed Constitution to the Federal Government are few and defined.” The Supreme Court has repeatedly turned a blind eye when Congress exceeded its authority under the Commerce Clause. As a result, the federal government can control practically every aspect of our lives. For instance, in the 1942 case Wickard v. Filburn, the Supreme Court decided that a farmer in Ohio, Roscoe Filburn, had to cease growing wheat to feed his chicken because he didn’t have permission from Congress. As a matter of law, we aren’t far from regulating American’s eating habits.

Kagan refused to answer the substance of my question. Her answers indicated she would support the big-government policies that created our $13 trillion debt and the welfare state that is collapsing into a fiscal black hole.

Even more troubling was Kagan’s refusal to say whether she believed in the principle of natural rights contained in the Declaration of Independence. Kagan told me, “I don’t have a view of what are natural rights independent of the Constitution.”

While I understand a nominee’s reluctance to express personal beliefs, it was extraordinary to hear a Supreme Court nominee decline to endorse the concept of natural rights contained in the Declaration of Independence that is the very basis of our Constitution.

Kagan’s answer exposed a troubling train of thought in progressive ideology. Refusing to acknowledge natural or God-given rights removes the morality from the progressive’s moral certitude. Without natural law there would have been no Constitution. Without natural law, “progressives” would take us back to the 17th century, when rights emanated from the state or the king rather than the creator.

Kagan made a number of statements that concerned me such as her statement that Justices can get “good ideas” on how to approach legal issues from the decisions of foreign courts. Instead of looking toward foreign courts for inspiration, Kagan, and more importantly the country, would be wise to look at the United States Constitution. With Kagan on the Court the chances are slim that the Supreme Court will rein in Congress and throw away years of expansive precedents that have nearly destroyed the Constitution. Our only hope is where it has always been in our system — with “We the People” and our willingness to elect leaders who will rediscover and apply the constitutional principles that made our government limited, and our country great.

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