Post Number:#16 July 6th, 2010, 6:29 am
Dewey wrote:Reply to whitetrshsoldier, Post 8:
I didn’t have the sense to stop when I was ahead. My main point still stands. Senator Coburn’s question was tailored to trick Ms. Kagan into a reply that he could use to feed the “activist judge” fears of gullible people.
Or, so that he could dutifully inform the concerns of constructionists and originalists.
The reason why it matters whether or not Kagan believes in natural rights is because if she doesn't, then she is free to interpret the words and meaning of the constitution from a different basis, which means she is free to interpret the constitution in contradiction to its foundational basis, as stated in the Declaration of Independence.
The constitution doesn't exist in a vacuum; the Declaration of Independence laid the foundational basis for establishing a new government by asserting that the natural rights (which all humans have) of the British subjects were being violated, and that those rights supercede any man-made law or social contract, which gave us the right to revoke our subjugation to the law imposed by the crown.
Our system of government is based on the concept that human beings have certain unalienable rights regardless of whether or not judges interpret (read: corrupt) the words of the constitution to infringe upon those rights. IOW, how Kagan plans on limiting her interpretation of the constitution, and according to what basis, is certainly important. That she dodged and danced a question that is rather easily answered, IMO, indicates that she not only doesn't believe in natural rights, but also that she doesn't want to say it because it will reveal her activist nature.
The Declaration of Independence, which laid out the basis for the Constitution, asserted natural, or unalienable rights. If Kagan agreed with that, all she had to do was say so. So, we can logically infer that she doesn't believe in natural rights, and so doesn't feel compelled to interpret the constitution as anything other than an invented, subjective code of rules that may or may not apply in modern culture.
A practical example of this is the right to bear arms; if one considers it a natural, unalienable right to arm oneself for protection (pursuit of life and liberty), then legislation which outlaws ordinary citizens from owning and carrying a firearm is clearly unconstitutional. If, however, one doesn't consider it a natural right, but simply a product of the times of our forefathers, then one can interpret the constitution to mean something else now because we live in different times.
Natural rights don't change because of culture and year; subjective, invented rules for living together are subjectve and open to broad interpretation.
Ms Kagan has told us that her job would be to enforce the Constitution and the laws.
No, her job as Supreme Court justice would be interpreting the constitution. The question is, on what basis is she going to be interpreting the constitution? She's clearly not an originalist, because our founding fathers intended that the rights in the constitution be considered unalienable, natural rights.
No hints whatsoever of this oh-so-evil “activist judging”.
I agree, it wasn't a "hint"; she as much as admitted she was going to be an activist judge by avoiding the answer.
Is that not enough? Judging is, as Kagan calls it, a “job” – not a crusade.
And therein lies another fundamental issue; if she believed that a judge is the protector of unalienable rights, then it is much, much more than just a "job".
Is this senate hearing an interview or an inquisition?
Ask Bork and Thomas. BTW, Kagan was all in favor of those "inquisitions", and called them good things. Why should anyone complain when she is given the very treatment she applauded before?
Is it beyond reason to suspect that this excessive interrogation is fueled by a desire for an activist-the-conservative-way judge?
A conservative judge is by definition not an activist judge, if by "conservative" one means "interpret the constitution according to the intent of those who wrote it on the basis that certain rights are unalienable (constructionist/originalist)".
To answer the question at the top of the thread, rights exist independent of what men say, do or write; they are independent of culture and laws that say otherwise, which is how our forefathers assumed the right to revoke the unjust rule of the crown.
If there are no such natural rights that justify our action against England, then our forefathers were just terrorist renegades that stole the colonies from their rightful owner and set up an illegal country; and thus all such acts of theft and social violence are justified, and all violations of law are justified, and the constitution is just a long, rationalized justification for theft and violence, and thus Kagan and other activist judges are free to use their interpretation to pursue the kind of society they think would be best.