Daily Archives: July 1, 2010

Kagan Rejects Founding Documents

We cannot afford another Supreme Court Justice that believes in a Living Constitution.

In Wednesday’s session of the Senate Judiciary Committee, Senator Tom Coburn (R-OK) attempted to get Elena Kagan to express her view on the Second Amendment. As she attempted to evade the question, Coburn referred to Blackstone’s writings concerning natural rights, asking if she believed, as the Declaration of Independence claims, that we have unalienable natural rights that precede the Constitution. Her answer was, “Senator Coburn”, I don’t have a view of our natural rights independent of the Constitution.”

On the surface, that seems like a reasonable answer, considering the job of a Supreme Court Justice is to apply the Constitution when considering whether a particular law, in a case before it, is constitutional. The problem is that in her testimony on Tuesday concerning her view of the Commerce Clause, she indicated that in deciding cases, her primary reliance would be on law and the Court’s prior rulings, not the original meaning of the text of the Constitution.

In other words, Elena Kagan, if confirmed for the Supreme Court, will depend more on “binding precedent” (stare decisis), rather than the text of the Constitution, when considering cases. Stare Decisis is an ancient legal concept that is important in assuring that courts will be consistent in their interpretation and application of the law. It has its origins, as far as our legal system is concerned, in English law.

Most of the Founding Fathers were schooled in English law; therefore, it was only natural that the doctrine of binding precedent should be brought forward into our legal system. However, there is an important difference between American Law and English Law. Great Britain does not have a written Constitution. Its Constitution is made up primarily of rulings by its High Courts and the acts of Parliament. The English Constitution is the model progressives long for, as they contemplate their desire for a “living Constitution”.

Under the American System, “binding precedent” is binding only on Appellate and lower court rulings. It is not binding on courts of the same level, although horizontal  courts should consider the rulings of other judges when deciding similar cases. It is not “binding” on rulings by the Supreme Court.  Since the only authority higher than the Supreme Court is the Constitution itself, that Court should use lower court decisions only to inform its own deliberations, not as a binding precedent or major influence on its judgement.

After two hundred years of court decisions on almost ever issue, each creeping further away from the original meaning of the Constitution, we cannot afford more Justices who consider themselves bound by stare decisis. It is important that each case before the Supreme Court be judged solely on the Constitution itself, not on the opinion of other courts, since no two cases are exactly alike. Only by seeking out the original meaning of the Constitution in each case, can the Court guard against the creeping corruption of original intent.

No Senator who respects the Constitution and the principles found in the Declaration of Independence can vote for the Confirmation of Elena Kagan to the Supreme Court. Constitution Conservatives need to contact every Republican Senator, without regard to state, and demand they do everything in their power to block Kagan’s nomination.

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