Elena Kagan and the empty Constitution — VOICES for REASON

In my article, “Justice Holmes and the Empty Constitution,” I discussed the widespread doctrine that the Constitution’s underlying purpose—protection of individual rights to life, liberty, and property—has no legitimate role in interpreting the document’s language. I summarized this view, pioneered by Justice Oliver Wendell Holmes, Jr., in the early twentieth century and prevalent among judges today, as holding that “the Supreme Court presides over an empty Constitution—empty of purpose, of moral content, of enduring meaning—bereft of any embedded principles defining the relationship between man and the state.”

In recent hearings, Supreme Court nominee Elena Kagan confirmed her allegiance to this modern orthodoxy.

Kagan’s views came out under clumsy questioning from Sen. Tom Coburn, an Oklahoma Republican and religious conservative. Coburn’s questions mixed together several ideas: that individuals have natural rights—that those rights pre-exist the Constitution—that such rights are God-given—and that those rights include owning guns for self-defense.

Rather than try and untangle Coburn’s mish-mash of truth, falsehood, and controversial detail, Kagan used the knife of Holmesian orthodoxy to slice them away with a single stroke. Inquiries about man’s natural rights are irrelevant to her fitness for the Supreme Court, she testified, because they are “outside the Constitution and the laws.” As such, she told Coburn, “you should not want me to act in any way on the basis of such a belief.”

Let’s consider the implications of Kagan’s view by means of a hypothetical Supreme Court justice. This judge knows, as a matter of fact, that the founding generation fought a bloody war against England to vindicate man’s individual rights to life, liberty, property, and the pursuit of happiness. This judge also knows, as a matter of fact, that the Founders crafted the Constitution for a single purpose, stated in the Declaration of Independence: to “secure these rights.” He also knows, as a matter of fact, that the Constitution establishes a government of limited powers, well suited to the protection of those rights.

What would it mean for such a judge to abide by Kagan’s view of conscientious judging? It would mean deliberately setting aside all these facts as mere personal views, “outside the Constitution and the laws.” It would mean following Justice Holmes in treating the Constitution as a document “made for people of fundamentally differing views.” It would mean acting as if any political viewpoint with electoral clout—be it capitalism, communism, socialism, fascism, Muslim totalitarianism, Christian fundamentalism, or some other ideology—has an equal constitutional right to shape American law for its own purposes, while the Supreme Court sits idly by.

This is an important issue—more important even than Kagan’s views on the Twilight film series. It’s a shame that our senators are not up to the task of making allegiance to our nation’s founding purpose a litmus test for confirming a Supreme Court nominee.

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