Kagan's Big Brother

Elena Kagan, President Obama’s nomination for the vacant Supreme Court vacancy, has not yet been the object of as much attention or controversy as have other recent SCOTUS nominations – including Sonia Sotomayor.  Her thin paper trail has been an effective barrier to getting traction in a study of her judicial views.  However, as those views come to light it is becoming increasingly clear that she is an aggressively liberal jurist whose views are grossly out of step with the principles established in our founding documents.

A recent Washington Times editorial points out that what trail does exist leads to one common idea: Kagan believes that government is the source of our rights and privileges as citizens. Judges are the voice of that government and determine what those rights are and when we should be granted them.

In discussing a 1992 case involving “hate speech” Kagan pondered whether the government could or should permit “some but not all fighting words", or whether it was “constitutionally constrained from selectively doling out this favor."  

If this terminology is to be taken seriously, Kagan seems to believe that government grants permission to speak to those it approves, "doling out" those rights as a "favor."  The idea that government does or should have the right to determine whether or not an individual can speak his mind is repugnant.  This opinion clearly suggests that she believes that government is pre-eminent in America – that citizens serve the state, derive their rights and privileges from the state and ultimately owe their very prosperity and happiness to the state.

Whatever else in her experience may (or may not) qualify her for a seat on the Supreme Court, this position clearly does not.  On this most basic issue, the relationship between the state and citizens, she gets it wrong -- absolutely wrong.  And this is not a merely academic dispute over subtleties in the meaning of words.  She honestly believes that government grants rights to its citizens.  That is not just slightly off the mark in terms of what our founding fathers believed and wrote in our founding documents.  It is 180 degrees wrong.  Completely wrong.  Just plain wrong.  

One cannot read the Declaration of Independence (something Kagan has apparently not done recently) without noting that Jefferson and company were very clear about one thing – legitimate government derives its just powers from "the consent of the governed".  If the intent of the founders was to create a government that answers to the people, and whose powers were derivative, not pre-eminent, can it even be seriously suggested that the government grants the right to self-expression as a “favor”? 

The Founders made it quite plain that legitimate government is not the grantor of rights, but the custodian of powers granted by the citizens who enjoy those rights as part of their existence -- which precedes government.  In their view, the most fundamental rights to free speech, religious belief, self-protection, pursuit of happiness were God-given, part and parcel of our existence as self-determining, free-thinking men and women.  Their study of history made them much more astute judges of the trajectory of government than Ms Kagan’s Ivy League education has made her.  They trusted it less, and for good reason.


In the words of the Times editorial Ms. Kagan “continually writes of ‘government discretion’ and ‘government prerogative.’ But she is dead wrong about such government pre-eminence. In the United States, the default position is that people pre-exist the government, not the other way around.”

Why does it matter?  If government as the power to grant rights then it can legitimately take them away, shape them, deny them to us, tell us when and where they can be exercised etc.  They can tell us what TV or radio stations we can listen to (see the Orwellian-named “Fairness Doctrine").  They can tell us what cars to drive (see the new GM).  They can tell us how much salt we can have in our food (see the new dietary ‘guidlelines’ for New York). That is the very definition of tyranny – and the cause over which the founders staked their lives and honor to fight against.

In short, Kagan has no place among the Justices of the Supreme Court of the United States.  While we can't know for sure how she would rule in any particular case brought before the Court, her bias is clearly pro- government, a bias which puts her clearly at odds with a Constitution designed to limit government.

While the Republicans in the Senate seem hesitant to take issue with Kagan (and it may be a moot point since Democrats have the votes to confirm her nomination), they should not lose the opportunity to point out the fundamental flaws in her judicial philosophy.  Even if she is confirmed by the Democratic majority, the debate over her nomination should be part of a serious discussion on first principles: 

–    where do the rights of citizens in the United States come from (God or Government)?
–    what is the role of the government regarding those rights? (to protect and preserve them, as the Founders intended, or to grant them as “favors” when and where and to whom it pleases?)
–    what limitations, if any, do our elected representatives work under?  (hint for those currently working for us in government – the answer is “yes, there are” and you swore an oath to uphold the document which spells them out.)
–    are we going to keep the republican form of government designed by our founders, and take the responsibility for educated self-government that it presumes, or yield our governance into the hands of elitist, corrupt tyrants in the making?

Surely the upcoming confirmation hearing will not be the final skirmish in the left’s assault on our Constitution.  But Supreme Court nominees serve for life.  This fact alone should motivate Senators who will vote on her nomination to have a serious discussion about her qualifications.  And it should motivate we who care about the life of the Republic to join the battle, contact our Senators and demand that Ms. Kagan’s nomination be given the full and vigorous debate owing to such a position.