Elena Kagan's Unconstitutional Views Disqualify Her from the U.S. Supreme Court

United States President Barak Obama has nominated Elena Kagan to the U.S. Supreme Court. The constitutional duty of a justice of the Supreme Court is to interpret the Constitution and federal laws as intended by their authors. Kagan’s statements in her confirmation hearing before the Senate reveal that she would not fulfill her duty because she believes that a federal judge may impose her own view instead. Therefore, has disqualified herself from Senate confirmation.

In my last post, I discussed Elena Kagan’s refusal to accept the concept of natural law as expressed in the Declaration of Independence. The Declaration affirms that the rights of man come from the Creator, not from the state. She insists that she would only rule on the rights as enumerated in the Constitution, even though the Constitution presupposes these rights and freedoms (i.e. it does not establish any freedoms and rights, but prohibits the United States from abridging those rights it enumerates) and, through the Ninth Amendment, it reserves to the people the rights that it does not enumerate. Kagan’s view suggests that rights come from government, which not only allows government to limit the enumerated freedoms and rights in whatever way it wants, but also to choose not to acknowledge or protect the rights and freedoms that are not expressed in the Constitution. Her opinion is thus contrary to the intent of the Framers of the Constitution, which ought to disqualify her from being confirmed as a Supreme Court Justice.

An additional disqualifying view held by Kagan is that the interpretation of the Constitution changes over time, which would substitute the whim of liberal judges for the original intent of the Framers of the Constitution and each of its Amendments. The Constitution and each of its Amendments were approved democratically by the representatives of the people through the deliberative, legislative process established by the Constitution itself. Whenever they are confronted with the legislative history that is contrary to their opinion, liberals like Kagan conveniently prefer to change the meaning of the words of the Constitution to match their preferences and to insist that their own interpretation is acceptable under the theory that the Constitution is a “living document.” Treating the law as changeable by judicial activism is another way of saying that liberals may change the law and the Constitution undemocratically through unelected judges whenever they are politically unable to change the Constitution through its amendment process or change legislation through Congress.

The combination of Kagan’s two unconstitutional views means that she would interpret natural law freedoms and rights in whatever way she wanted, despite the original intent of the Framers, even to the extent of not even acknowledging a right or freedom that is expressed in the Constitution, let alone those that are not. For example, she has expressed her opposition to the right to keep and bear arms expressed in the Constitution, which the Supreme Court ruled the Framers intended as a personal right. The Court was closely-divided in that case, which means that it could deny that right if only one vote on the Court changes. The recent closely-divided Citizens United case suggests that the liberal minority of four of the nine Justices which Kagan would join if confirmed by the Senate would even limit the freedom of speech or of the press.

On the other hand, liberal judges create new “fundamental” rights never intended by the Framers, even if it is necessary to limit basic freedoms like the right to life as expressed in the Declaration of Independence, such as the right to an abortion, even though the denial of the right to life without due process of law is prohibited by the Constitution. Indeed, when she worked in the Clinton Administration, Kagan reworded a medical association’s statement regarding partial birth abortion that suggested the procedure might be medically necessary, contrary to the association’s opinion – a change which was erroneously relied upon by the Supreme Court in overturning a state ban on partial birth abortion as if it were scientific fact and not political expedience masqueraded as science.

Kagan, as dean of Harvard University also infamously banned the military from recruitment on campus she was dean of that school, despite federal law requiring schools that accept federal funding to allow equal access to the military as private recruiters. The nominee for federal court continued her ban even after a federal court ruled it was illegal.

Although Kagan’s views of abortion and her record on discrimination against the military are troubling, her overall radical judicial activist philosophy of rejecting natural law and interpreting the Constitution any way she prefers, despite the intent of its Framers, suggest she would threaten liberty through the tyranny of judicial activism instead of protecting liberty by fulfilling her duty of interpreting the Constitution and the law as its authors intended. Therefore, her opinions disqualify her from confirmation to the U.S. Supreme Court. Conservatives must demand that the Senate reject the nomination of Elena Kagan to the Supreme Court.