Elena Kagan: Could She Defend the Constitution’s Purpose?
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Elena Kagan: Could She Defend the Constitution’s Purpose?

by Tom Bowden | July 20, 2010 | Christian Science Monitor

After clearing the Senate Judiciary Committee today, Elena Kagan must now win the support of the full Senate.

Assuming that the Senate confirms Ms. Kagan to be the next justice for the Supreme Court, she must swear to “support and defend the Constitution of the United States.” But does she understand the document she’s supposed to uphold?

Alarmingly, Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.

As a matter of historical fact, the Founding Fathers wrote the Constitution for a certain purpose. They wanted a government that would respect and protect the individual’s rights to life, liberty, property, and the pursuit of happiness. Aside from certain contradictions (the worst of which, toleration of slavery, required a bloody civil war to expunge), the Constitution is dedicated to protecting the individual from society by means of a limited government. The Supreme Court cannot objectively interpret the document’s language apart from this essential purpose.

Regrettably, however, too many of today’s judges reject this approach to constitutional interpretation.

The Holmes model: sneering at natural rights

Instead, they follow the path marked out by Justice Oliver Wendell Holmes, Jr., who sat on the Supreme Court from 1902 to 1932. “All my life I have sneered at the natural rights of man,” Holmes wrote, reflecting his view that the individual rights venerated by the Founders have no objective validity and therefore no role in discerning the Constitution’s meaning.

Judges may harbor personal opinions on man’s rights, Holmes conceded, but such notions have “nothing to do with the right of a majority to embody their opinions in law.” Holmes’s view directly contradicts that of James Madison, the Father of the Constitution, who reviled unlimited democracy as “incompatible with personal security or the rights of property.”

Kagan, during her recent hearings, declared her allegiance to the Holmesian orthodoxy. Under questioning from Sen. Tom Coburn (R) of Oklahoma, Kagan said a judge’s understanding of inalienable rights is “outside the Constitution and the laws,” and therefore “you should not want me to act in any way on the basis of such a belief.”

In a written follow-up, Kagan named Holmes as the last century’s most influential Supreme Court justice, stating: “His opinions . . . set forth the basic rationale for judicial deference to legislative policy decisions.” Having discarded the Constitution’s actual purpose as irrelevant to judging, Kagan is left with Holmes’s concept of the Constitution as a mechanism for implementing unlimited majority rule.

How might a different judge proceed — one who regards it as her duty to interpret each clause in relation to the individual rights to life, liberty, property, and the pursuit of happiness?

Different ideas about the Commerce Clause

Suppose she were asked to interpret the oft-disputed provision that grants Congress authority to “regulate Commerce . . . among the several States.” Such a judge would recognize that the Commerce Clause empowered Congress to protect the rights of traders, by preventing states from imposing tariffs and other restrictions on the free movement of goods across state lines.

Such a judge, applying the Commerce Clause to current cases, would ask whether any proposed government action itself violates an individual’s rights. And such a judge would stand ready to strike down laws that exceed the government’s granted authority.

Kagan, by contrast, would see the Commerce Clause as authorizing nearly total control by the majority over the way every individual earns a living, spends money, and trades with others — his rights be damned. She would have no trouble finding, for example, that the majority, through its elected representatives in Congress, is authorized to mandate the individual purchase of health insurance, as Obamacare attempts to do. After all, insurance is part of commerce, isn’t it?

Nor would she fail to find authority for the government to bully banks into joining bailout schemes, launch massive “stimulus” spending of taxpayer money, and cap carbon emissions. If it’s commerce, the majority can control it. During her testimony, Kagan even lectured Sen. Coburn on the majority’s constitutional right to (hypothetically) require that each individual eat three vegetables a day — allowing herself only an inconsequential personal opinion that such a dictatorial law would be “dumb.”

This is the judicial philosophy that has enabled government to expand at an accelerating pace for more than a century — without judicial impediment, and without any end in sight.

If the Senate confirms her nomination, Elena Kagan will surely recite the words of her oath accurately, but her testimony shows she has no intention of supporting and defending the true Constitution.

About The Author

Tom Bowden

Analyst and Outreach Liaison, Ayn Rand Institute