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

By Bowden, Thomas A | The Christian Science Monitor, July 2, 2010 | Go to article overview

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


Bowden, Thomas A, The Christian Science Monitor


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 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. …

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