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Kagan And Independence Day

I see it as nothing short of alarming that we go forward with the Fourth of July /Independence Day celebrations as if nothing was wrong; as if the instrument which has served better than any other to protect our freedoms …namely the Constitution of these United States… wasn’t under direct attack by those currently in power and who are run a clean and falsely claimed that they would support and defend said constitution.

I’m afraid that were going to hear lots of platitudes today, regarding our freedoms.  A large number of these are going to be platitudes issued from people who would just as soon that we didn’t have such freedoms.  The one of these, I fear, is the president of the united states .  How else can we aver that the he could in clean conscience nominate Elena Kagan to the united states supreme court… supposedly the final arbiter of what the constitution means …. who clearly believes that all that bull of self evident truths, inalienable, God-given rights of man, is just filler.  I’ll offer her exchange with Senator Tom Coburn.

Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?

Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.

Coburn: I’m asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone [in] 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 that?

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 the laws of the United States.

Coburn: So you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution that are ours, ours alone, and that a government doesn’t give those to us?

Kagan: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws.

Coburn: Well, I understand that. I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

Kagan: Senator Coburn, I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief.

Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says.

Kagan: I think you should want me to act on the basis of law. And that is what I have upheld to do, if I’m fortunate enough to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.

The thrust of this thing, is precisely what I told Billy Beck [1] several years back; that if we had people in power who actually held to the original meeting of the constitution, Beck and I would have far less to argue about.  Beck in our conversations over the years has stressed the idea that our rights do not descend from the constitution, or for that matter the government instituting said constitution, however accurately. either.  Insofar as that, I suspect we agree. Then again, so does the constitution, in its original meaning.

The reason is controversial, and a little vague in some discussions is because there’s a lot of people involved with this discussion who refuse to acknowledge that there’s anything that could possibly be more powerful than government, or more powerful than man for that matter.  that column is important because the founders didn’t have any trouble whatsoever with that concept.

The fact is, Kagan has a tendency to be rather selective when it comes to original meaning.   She tells that same hearing, that she is a strong believer in Stare decisis. [2] But is she really? For example if Stare Decisis were the rule, Plessy would still be the law of the land as would Dred Scott. Somehow I suspect her devotion to court rulings of the past doesn’t extend quite so far as that.  When someone tells you that they’re a strong believer of Stare Decisis that means they think their views will not withstand continual challenge.  But I submit that on the whole our conservative principles DO withstand constant challange. Consider the recent ruling by the USSC as regards our right to keep and bear arms. [3]

I more than suspect that the principles laid down by the founders of this nation will be continually upheld if given an objective look through the prism of our constitution and through an originalist mindset.  Kagan, I fear, is not one of these.  Neither , then, is the person who appointed her.

Our freedoms are being challenged by our own government as they have never been before.  By all means, celebrate today in its meaning.  But be prepared to stand up for it, as well.  That means standing against the current occupant of the white house and his followers.