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I am retired from government, law enforcement, politics and all other pointless endeavors. I eat when I am hungry and sleep when I am tired.

Monday, July 5, 2010


In all the spin surrounding the Elena Kagans appearance before the Senate Judicial Committee her most crucial admission went largely unnoticed.  She disavowed any belief in a human right not specifiably expressed in preexisting, written, law.  Our pundits of the press corps are oblivious to the significance of such a statement, so perhaps I should deliver the classics illustrated version.  Elena Kagan adheres to that school of thought that holds that all law is merely a social construct created for the management of society, and is infinitely maliable for that purpose.  In short, Elena Kagan could never have written...."That these truths are self evident "....or that we have "Inalienable rights."  As she said, she has no belief in natural law.

The framers and founders did believe in such a doctrine, stating plainly that some basic  rights emanate from either the Deity or from nature.  So the question is, just how can she swear to defend and interpret a constitution the basic presumption of which she rejects?


  1. Take another look at the bit of testimony you're alluding to; you can find it at She doesn't say there is no natural law or that there are no natural rights; she "take[s]no view on" on what is is or is not natural law, and she says it would be her job as a judge to interpret the constitution and the law written under it, not to impose her own views about a natural law that might supersede the constitution and legislative will.

    Isn't that what you want? A judge who decides cases based on his or her own view of natural law, rather than the view taken by the constitution and Congress, is an activist judge. Such a judge might easily decide that "from each according to his abilities, to each according his needs" is natural law, and that wealth should accordingly be redistributed. Do you want that? Or, suppose the American people amended the Constitution to eliminate birthright citizenship, but a judge disregarded this Amendment as contrary to natural law as he or she understands it. Would be OK with that?

    Now, if Coburn had asked her what she makes of the unenumerated rights mentioned in the ninth and ten amendments, or of the court's assertions that we can determine what rights are fundamental by looking at history, he might have gotten at something interesting. But he didn't.

  2. You state "As she said, she has no belief in natural law."

    But she makes it clear that she is not saying that at all: "I'm NOT saying that I do not believe that there are rights preexisting the constitution and the laws, but my job as a justice is to enforce the constitution and the laws." (

    Senator Coburn wanted to know whether she personally believes that the right to bear arms is a natural right--but do you really want justices, or potential justices, opining on what our rights are independent of the constitution? If you ask judges to determine our rights according to their views of natural law, regardless of the constitution, you're asking them to be not just judicial activists but dictators.

  3. Anonymous and Brian, What Coburn was trying to get at was Kagan's respect for the proposition held by the founders that the constitution referred to natural rights pre-existing the constitution itself. Our constitution did not spring from the foreheads of the founders but proceeded from English legal doctrines predating Magna Carta. Kagan was being obtuse on this because as you point out, she neither confirms or denies a belief in natural law.

    I find this sort of obfusecation offensive coming from leftists who find all sorts of novel rights reflecting their views while adopting a letter of the law approach regarding anything traditional.

  4. "I find this sort of obfusecation offensive coming from leftists who find all sorts of novel rights"

    That's understandable--but, of course, progressives are similarly "offended," or at least frustrated, by conservatives who are natural law activists on gun rights and strict constructionists on most other rights.

    If you look at Coburn's words, he started this line of questioning by asking Kagan if she thought there was a natural, pre-constitutional right to bear arms. He wasn't just trying to get at Kagan's respect for the concept of natural rights in general; he was trying to get her to commit to a specific view, independent of the constitution, on whether a right is natural. That is precisely what a justice or prospective justice shouldn't do. Their job is to interpret the constitution and the laws, not to impose their own views of what the constitution and the laws :should" be.

  5. Brian, anyone who understood our Anglo-Saxon tradition would have no problem with Coburn's question. The founders understood that there were preceding rights and they took the trouble to enumerate them in the bill of rights. Kagan may or may not believe that we have natural rights. It seems obvious to me that her evasive answer points to an understanding of our constitution that does not privilidge the origional intent and understanding of the constitution. In this I find her an unworthy candidate.

    If you believe that our constitution can be applied without reference to the cultural norms of the founders or of their intent, then we have a profound disagreement.

    Elena Kagan is on record supporting the "right" of sexual deviates to serve in the armed forces. Yet she claims not to consider natural rights. Since the "right" of deviates to serve in the military was only recently discovered/invented, is not her position one of the discovery of a hitherto unrecognized natural right? Clearly the drafters of the constitution understood no such right, so it must come from somewhere.