In his clumsy, populistic way, Senator Tom Coburn (R,OK) has hit on something really important:
Since it’s clear Kagan is not an originalist (although it’s not clear what she is), it’s not surprising that natural rights strike her as a distraction from the proper work of a Supreme Court justice. When she says D.C. v. Heller “made clear that the Second Amendment conferred that right [to arms] upon individuals,” she is expressing the positivist view that we have whatever rights we have by virtue of the law (including the Constitution). Although she did not directly answer the question, it’s pretty clear she believes those rights are not pre-existing. When she says, “I don’t have a view of what are natural rights, independent of the Constitution,” her agnosticism is hard to distinguish from atheism. (I don’t mean to imply that believing in natural rights requires believing in God; Ayn Rand certainly didn’t think so.)
Still, it’s hard to believe that Kagan really thinks there is no external standard by which to judge the morality of a constitution. If our Constitution is better now that it bans slavery than it was when it tacitly allowed slavery, why is that? The traditional American answer is that slavery violates basic human rights, a.k.a. natural rights, that people have by virtue of being people, regardless of what the law says. What would it cost Kagan to acknowledge as much?
Coburn is one of those people who evidently believes (as I do) that our Declaration of Independence, whose proclamation we are celebrating today, is our foundational document. Kagan is one of these people who believes that the Constitution is that foundational document although, for anyone familiar with French history, such an idea is a ROFL moment if there ever was one.
It’s an important issue. If we take Coburn’s position, then we must interpret the Constitution according to the ideas of the Declaration, which includes the concept of natural rights. If we take Kagan’s position, then the basic rights we have are subject to amendment, be that by explicit constitutional amendment or by fiat amendment from the bench. And that amendment, in turn, is subject to whatever “prevailing” values are on that bench.
That’s the central flaw in the Tea Party’s obsession with the Constitution: in the hands of a supple judiciary, it becomes whatever they say it is, and the appeal possibilities are decidedly limited. The Tea Party will, in the end, be hoisted by its own petard.
What Coburn should have asked Kagan is something like, “If the Declaration of Independence isn’t our foundational document, then what right does the country have to exist?” But neither he nor most conservatives have the guts to ask that question.