Elena Kagan has shown a troubling willingness to defer to the
tyranny of the majority, instead of upholding individual rights.
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
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. …