Kagan v. Independence

The retirement of liberal Justice John Paul Stevens from the Supreme Court presented an opportunity I now consider lost.  Solicitor General Elena Kagan will be confirmed this week, with little resistance.  President Obama’s nominee is a political operative with little substance to offer in word or action.  Oddly enough, her confirmation as Supreme Court Justice coincides with Independence Day weekend.  Funny, since the woman does not believe in inalienable rights as defined in the Declaration of Independence, our first founding document.

On Independence Day, it is prudent to remember why this country is unique.  As two percent of the world’s populations, Americans have the highest standard of living in the world.  Why?  Why is this the land of opportunity?  The notions that define this country may have began centuries earlier, but culminated on July, 4 1776, with the codification of American freedoms in the Declaration of Independence.  But Elena Kagan has no regard for the tenets bravely espoused by our founders 234 years ago.

Balderdash! you may say, spewing your coffee (or soda, or other beverage) on your monitor.  Well, here’s an exchange from the Hearing this week between Ms. Kagan and Senator Tom Coburn:

COBURN: Do you agree with Blackstone that the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn’t say that was a Constitutional right.  He said that’s a natural right.  And what I’m asking you is do you agree with him?

KAGAN: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States. (emphasis added)

With the retirement of Stevens, some were asking, “Could it get any worse?”  The answer is yes:  Kagan does not believe our rights are ours and ours alone, endowed by our Creator, among them, explicitly listed as Life, Liberty, and the Pursuit of Happiness.  While Stevens is a great man and a patriot, the cause of liberty in the Supreme Court was not aided by his 35 year stay there.  However, unlike Kagan, I do believe Stevens would have found at least some merit in the Declaration of Independence and the rights it secured for us.

Ignoring all the gay stuff and abortion drama, let’s compare and contrast Kagan and Stevens on the issues that matter.

Another Man’s Legacy

When the Court has found it prudent to overturn parts of the U.S. Constitution, it has typically been in favor of the aforementioned natural rights, for which, again, Kagan has no regard.  Though Stevens may respect these liberties, he has a history of ruling against liberties enumerated in the Bill of Rights.  John Paul Stevens authored the 5-4 dissent in the historic Bush v. Gore, which disagreed with the Electoral College, as prescribed in Article II, Section 1, Clause 3 of the U.S. Constitution, and instead suggested we hold the popular vote as the standard for presidential election.  Stevens is quoted in his dissent as follows:

“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear.  It is the Nation’s confidence in the judge as an impartial guardian of the law.”

Steven’s issue with the Constitution is the very fact that it is impartial.  There’s no undoing founder’s intent where it is explicit, as Kagan bemoaned this week.  Where it is implicit, Stevens did his best to unravel original intent and original meaning, notable recently in Citizens United vs. Federal Election Commission. (Regarding this case, I would like to point out my own hesitation with the majority opinion; while the Freedom of Speech should never be abridged, I believe there should be some limits to corporate funding of candidates, and at the least, publish the names and amounts of corporate donors.)

Nevertheless, when we restrict the freedom of speech based on “blank,” we are censoring them.  We must be able to defend such censorship with legal means found in the U.S. Constitution.  This is usually done with the Ninth Amendment, where I believe our inalienable rights are recapitulated, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  We have the right to speak out as long it does not inhibit another’s rights.  No exceptions.

However, in September, as Solicitor General in the Citizens United case, Elena Kagan argued that government had the right to ban certain literature that advocated election or defeat of a candidate for federal office, urging the Supreme Court to “embrace theory of First Amendment that would allow censorship not only of radio and television, but of pamphlets and posters.”

The First Amendment guarantees free speech, the beginning of all other rights.  We cannot muzzle certain voices, no matter how bad it hurts.  The Second Amendment, already shown to be endangered by Kagan in her exchanges with Sens. Coburn and Grassley this week, is the protectorate of the First Amendment.  If we have no natural rights in this regard, we have no rights at all.  Those who would wish to re-enslave us would be quick to dismiss our inalienable rights as outside the Constitution.

Without these rights, the federal government would be allowed to instruct you on when to wake up, what to wear, where to work, how much you could earn, and what you could eat, what you could eat, what you could eat.

In case you missed it, what you could eat.  Since Coburn brought it up…

Let’s Talk About the Commerce Clause

If you didn’t know, I wholly disagree with Obamacare; check my category named “Health” for more information than you’d ever want on the issue.  For one, I do not agree with the ideology that government is to care for the individual from cradle to grave.  Handouts do not create Happiness.  I fear what it will do to the American soul, to American freedoms, and to American business.  The totality of the law has not yet been implemented.  There is a way to stop it, though, and it’s called the Commerce Clause.

Like John Paul Stevens, Elena Kagan believes in a bastardized version of the 16-words in Article 1, Section 8 Clause 3, aka the Commerce Clause.  As I did with regarding the Fifth Amendment in my post “Disappearing Property Rights,” I will include the Clause in its entirety:

“The Congress shall have the Power:  To regulate commerce with foreign Nations, and among the several States, and with the Indian tribes.”

At the outset, note the difference between the words ”among” and “within;” technically, the law allows regulation of INTERstate Commerce, not INTRAstate Commerce.  If you understand that, you’re ahead of the Supreme Court.  You see, liberal Justices are inclined to pair the Commerce Clause with the Necessary and Proper Clause, which states:  “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Where would these combined powers end?  Depends on your slant.

Also, for liberal Justices, there’s the Constitution, then there’s judicial precedence.  While both are important, each Justice will have to reason through which ideals are most important to maintain individual freedoms within the law.  Stevens was partial to federal powers, dissenting in United States vs. Lopez (the gun-free school zone case, and the first case to roll back Commerce Clause powers since the New Deal), United States vs. Morrison (which determined that “Violence Against Women” was not Interstate Commerce), and writing the majority opinion in the 6-3 Gonzalez v. Raich, which restricted the state’s rights to legalize marijuana.  If you think the marijuana trade is a criminal matter and not Commerce, you may be right, but only one-third of the Court agrees with you.

“How does this effect me?” you may ask.  “I don’t smoke the ganj.”  Well, Cato Institute’s Ilya Shaprio notes Gonzalez opinion “ratified the most expansive use of government power under the Commerce Clause ever.”  This is an extremely important case for judicial precedence in the fight to repeal Obamacare.  As Newsweek magazine points out:  “The case has major implications for the present health-care reform debate, because health reform depends on the federal government’s powers under the Commerce Clause.”

Kagan has been extremely, and astutely, silent (some might say “elusive“) on the Commerce Clause, but she let one slip past the goalie in her deliberation with Senator Coburn, my Hero of the Week.  (In case you missed it… what you could eat).  Obamacare’s repeal will depend on the interpretation of the last few cases I listed, so if you want to know how all this will go, familiarize yourself with them.

Final Thoughts

Is the cause for liberty diminished with the Stevens-Kagan transition?  Not really, because the ideological balance remains unchanged.  What’s more, Kagan will be a lightning rod for midterm campaigns.  The problem is, she’ll be a Justice for the next 20 to 30 years.  In that amount of time, she could thrust judicial review back to the Stone Age; yabba, dabba doo!  Sorry; I had to throw that in.

The more people are aware of the fact that their liberties are always in danger, though, the more likely we are to stay a free society.  I’m asking you to please stay engaged, no matter how boring or how ugly you may think it is.

“If man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom?”

~ John Locke, Two Treatises of Government, 1689