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Kagan’s Updated Declaration of Independence

In light of Elena Kagan’s impending confirmation for the Supreme Court, I’m troubled by the clash between her legal philosophy and that of America’s Founding Fathers. As I wrote recently in The Christian Science Monitor, “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.”

I suppose you could call it black humor, but I’m imagining what the results might be if Kagan were called upon to edit Thomas Jefferson’s most famous passage in the Declaration of Independence. What if Kagan’s own views, as inspired by Justice Oliver Wendell Holmes, Jr., were to replace America’s founding ideals? I’m thinking the result would look something like this:

“We hold these personal opinions to be pretty important for us, but not necessarily for anyone else—that all people are equally subject to society’s arbitrary command—that they are endowed by majority vote with various uncertain and alienable privileges—that among these are life spent in the service of others, liberty to achieve the public interest, and the pursuit of everyone’s happiness but one’s own—that to create these privileges out of thin air, governments are fastened onto humankind, deriving their arbitrary powers from the consent of the ruling faction at any particular moment.”

It’s technically not too late for the full Senate to do the right thing and vote to reject Kagan—but unfortunately, most of our senators see nothing amiss in her philosophy of governance.

(If you need to cleanse your palate, the full text of the original Declaration of Independence is here.)