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.”
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.” Read the rest of this entry »