Kagan’s indifference is reason to worry

“To be honest with you, I don’t have a view of what are natural rights independent of the Constitution.” –Elena Kagan during her Supreme Court confirmation testimony

Under questioning last week from Sen. Tom Coburn (R-OK), Supreme Court justice nominee Elena Kagan  expressed a disturbing indifference to natural rights on which Coburn pressed her in a testy exchange that received considerable media airplay:

Coburn: “If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the Commerce Clause?”

Kagan: “Sounds like a dumb law.”

Coburn: “Yeah, but I got one that’s real similar to it that I think is equally dumb. I’m not going to mention which it is.”

Kagan: “But I think that the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.”

Sen. Coburn then asked if Kagan disagreed with the Declaration of Independence that there are inalienable rights given by God. Kagan answered, “Sen. Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights preexistent [to] the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws…I think you should want me to act on the basis of law.”

Her evasive response caught the ear of David Rivkin, lead attorney in the Florida lawsuit against Obama’s health care law. Rivkin understands the importance of founding documents like the Declaration of Independence. In a recent Heritage.org article, Rivkin writes “The Declaration of Independence … articulates the principles that justify the American Republic’s very existence.” Born in Russia, Rivkin understands what like is like in a totalitarian regime which is why he is defending Americans who don’t want to see their liberty taken away.

Here is video of Kagan explaining her belief that the Constitution was meant to be “interpreted over time” at the Real Clear Politics Blog.


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