Thursday, July 15, 2010

The problem with Kagan

According to a recent study, only two-thirds of Americans can name a single Supreme Court justice. That means it is likely that even fewer are aware that the U.S. Senate is in the process of deciding whether Elena Kagan will be the next justice on the United States Supreme Court.

Not only should you be aware this is happening, you should be troubled by the apparent inevitability of her confirmation. My concern with Ms. Kagan on the Supreme Court is the same concern I would have if my accountant showed up to perform my heart surgery. It isn’t that she is incapable or can’t offer something valuable to the world; it is simply that her deficiencies make it dangerous for her to perform this particular job.

The statement that best illustrates her lack of qualification were revealed in an exchange with Sen. Tom Grassley. (click here to view) Sen. Grassley asked Ms. Kagan whether she believes the second amendment codified (wrote into law) an existing right or was a right created by the constitution. After looking momentarily confused, Ms. Kagan admitted that she had never really considered that question.

This should horrify you.

If you were to build a shed in your yard, you would have the right to remove or tear down that shed once it no longer served a useful purpose. If your neighbor builds a shed in his backyard, you do not have the right to remove it because you have no authority over it.

So it is with individual rights. If the constitution codified an existing right, it would simply be acknowledging rights that pre-existed the constitution. However, if the constitution created the right, then the government that created the right would also have the authority to take it away.

The idea that a United States Supreme Court justice would have never considered the difference between these philosophies is like a baseball player who has never considered whether to run to first base or third base after hitting the ball.

Unlike Ms. Kagan, our founding fathers thought about this question at length. Their belief that men are “endowed by their creator with certain inalienable rights” was fundamental to their understanding of liberty and is the chief reason the constitution was written to control the government and not to control the people. Thomas Jefferson stated his position this way. “God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift from God?”

There are only two options. Either rights come from God or rights come from government. The fact that Ms. Kagan has never considered this question should concern us not only because it could be evidence of intellectual apathy, but because without considering this question you cannot possibly understand the substance of the constitution she would be charged with interpreting.

I am certain there are many things Ms. Kagan can do well. The evidence suggests that understanding the constitution and preserving our freedom is not likely one of them.

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