During Elena Kagan’s confirmation hearings, it became evident that she does not believe that Americans possess natural rights, rights that our Founding Fathers believed are self-evident, naturally belong to all people and pre-exist government. It was their view that legitimate governments are not created to grant these rights; rather, they are created to protect these rights.
Among the natural rights that belong to every individual and that the Founding Fathers recognized as existing outside of government are the right to keep and bear arms and the right to speak on any subject or about any policy or politician. The Founding Fathers were careful to craft the Bill of Rights in such a way that it was absolutely clear that the proper role of the government was to protect our pre-existing rights.
For instance, regarding speech, the Constitution says Congress shall not abridge the “freedom of speech.” It does not say Congress shall establish a right to freedom of speech; that right already exists. The proper role of government is not to grant a right, but to ensure that the right is protected. The same can be said for every individual’s right to own firearms. The Second Amendment does not say that Congress shall create a right for people to own firearms, it says Congress shall not infringe on “the right of the people to keep and bear arms.” These are rights that our Founders recognized as existing outside of the authority of government.
These are among the fundamental rights that are threatened by activists such as Elena Kagan, Obama’s second nomination for appointment to the Supreme Court.
For instance, when Sen. Tom Coburn (R-OK) asked Kagan if individuals have a natural right outside the Constitution to possess and use arms in self-defense, she professed to have no opinion. But in her summary of the Supreme Court’s decision in D.C. v. Heller upholding the right of residents of Washington, D.C. to own firearms, she summarized the decision by saying the Court “confers” the right to an individual to keep and bear arms. What the majority opinion actually stated was that the Court “acknowledges” the individual’s right.
During her hearing, documents were produced that indicated an almost tyrannical view of the government’s power to limit political speech. In the Supreme Court case of Citizens United v. the Federal Election Commission, in her role as U.S. Solicitor General in the fall of 2009, Kagan argued that citizens should be fined and sentenced to up to five years for distributing information that criticizes federal candidates within 60 days of an election.
There are other fundamental rights that our Founders recognized as existing outside of the authority of government such as the right to private property and the right to be secure in our own homes from unreasonable search and seizure. These rights are threatened by activist federal judges and justices who believe the Constitution is not a compact with the people which should not be violated. They believe the Constitution is a “living” document whose meaning evolves and changes with the times.
Every citizen must understand that elections have consequences and that every federal court nominee has political ramifications because they are political appointees. They are the fruits of political victory and should never, regardless of which party is in power, be viewed as anything else because these life-long appointments are opportunities for the advancement of a political agenda.
Consequently, the Republican minority in the Senate should refuse to allow a vote on Kagan until there has been enough time to thoroughly evaluate her qualifications and her political record. Given that the next session of the Supreme Court does not begin until October 1st, all 41 Republican senators should commit to blocking a vote until at least September. For the Democrat majority to deny additional time for a full and complete evaluation should be regarded as another example of ramming something—in this case Kagan’s confirmation—down the throats of the American public much like they did health care reform.
Activists such as Elena Kagan have an agenda to restrict our natural rights and force us to conform to the dictates of the government. Whether it is gun control, political speech or our right to decide about our own health care, activist federal judges and justices will take these rights from us when they can get a majority of Supreme Court justices who will go along. When Elena Kagan is confirmed, Americans will be just one Supreme Court justice away from losing some fundamental rights.
Many voters are paying attention to the Kagan confirmation process closely to see if the Republicans will have the will to fight or whether they will be the same party they tossed out of power in the last two elections.
About the author: Gary Palmer is president of the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.