Kagan: Unfit for the Supreme Court

On June 30, in her confirmation hearings, Solicitor General Elena Kagan gave a response which gives me pause about her fitness to serve on the Supreme Court. Senator Tom Coburn, Republican of Oklahoma, asked her view of the natural right to self-defense. She responded, hesitantly, that she didn't have a view of natural rights independent of the Constitution. But natural rights independent of the Constitution form the very fabric of it. Let me explain.   

The U.S. Supreme Court, the court to which Elena Kagan aspires, said in Ex Parte Grossman, 267 US 87, 108 (1925), "The language of the Constitution cannot be interpreted safely except by reference to the common law and British institutions as they were when the instrument was framed and adopted." All of the men who wrote the Constitution, up until the time of the Declaration of Independence, had considered themselves Englishmen. The law by which they were governed was, in addition to the statutes enacted by colonial legislatures, the British common law. Beginning in 1765, William Blackstone published the first volume of his magisterial work, Commentaries on the Laws of England. The fourth and final volume was published in 1769, the same year as the first American edition. This edition includes a list of subscribers who purchased it in advance of its publication. This list includes several attorneys who sat in the constitutional convention. The Founders were intimately familiar with the common law.

Blackstone writes of the British "Bill of Rights," which was passed early in the first parliament of William and Mary following the "Glorious Revolution," the revolt which led to the expulsion of the last Stuart monarch, James II. He explains that the Bill of Rights was not an act to grant rights to Englishmen, but an act which Parliament believed was to restore natural rights which had been usurped by the Stuart dynasty. The British Bill of Rights included the right to bear arms for self-defense. 

Blackstone wrote that there were three absolute rights which were recognized by the common law as being natural rights: personal security, personal liberty, and private property. These rights were protected by certain auxiliary rights, which included 1) the powers of Parliament, 2) limitation on the prerogative powers of the King, 3) access to the courts for justice, 4) the right to petition the King for redress of grievances, and 5) the right to keep and bear arms. The auxiliary rights were necessary, he said, to protect the absolute rights which no government could lawfully abridge.

Given what the Supreme Court precedent has already said, these rights are not "outside of the Constitution," as was suggested by Elena Kagan. Further, Blackstone was not the only influence on the framers.

Donald Lutz, writing in the American Political Science Review in 1984, listed all the British and European thinkers cited by the framers sixteen times or more between 1760 and 1805. Blackstone, as I recall, was number five on the list. The list included a number of thinkers who wrote in favor of the existence of natural rights, including the natural right to self-defense, including Baron Montesquieu (#1), John Locke (#3), Cesare Beccaria (#6), Hugo Grotius (#10), and Marcus Tullius Cicero (#11). 

Finally, the Constitution could not have been written unless we were an independent nation at the time we wrote it. The life of the Constitution rests upon the validity of the Declaration of Independence. Recall that the author of the Declaration states that the authority by which we declared our independence from Great Britain is "the Laws of Nature and of Nature's God." Thus, the very Constitution which Kagan would be called upon to judge depends upon a natural right which is independent of it.

The most fundamental question for any judge is why laws exist at all. Surely, laws exist to protect the personal security, personal liberty, and private property of those subject to them. This must mean that the rights to these, as Blackstone observed, exist independent of the laws written to protect them. Otherwise, any manner of laws could be written, such as a law to tell us what foods we should eat and in what proportions.

To say that she has no view on natural rights means either she does not understand the origin and meaning of the Constitution or she is in fundamental disagreement with both. In either case, she does not belong on the Supreme Court.

James H. Warner is an attorney who is retired from the legal office of the NRA. He served as a domestic policy advisor to President Reagan. He received the H.L. Mencken award in 1990 for an op-ed in defense of the First Amendment.
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