Live Blogging the Kagan Confirmation: Day Three

Robert Alt / June 30, 2010

Deputy Director of the Center for Legal and Judicial Studies at The Heritage Foundation Robert Alt is scheduled to testify as a minority witness this Thursday before the Senate Judiciary Committee’s hearing on the nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States. Throughout the hearings, he and his colleagues will be providing real-time updates here at The Foundry.

5:56 PM – An Alienating Response on Inalienable Rights

Should we take Elena Kagan at her word when it comes to her thoughts on inalienable individual rights?  Under intense questioning from Senator Tom Coburn (R-OK) regarding her basic understanding of the political and legal ideals underlying the Declaration of Independence and Constitution, Kagan asserted that she had no opinion whatsoever on the topic of which individual rights qualify as natural or inalienable in character.

A legal scholar with no take on such a fundamental constitutional topic seems at best disingenuous and at worst frightening.  How can one effectively analyze and apply the Constitution without a firm grip on what basic freedoms underlie our founding documents and national social compact?  How can one effectively understand the original intent of the Framers without any opinion on the essential place of certain liberties within the American legal framework?

Kagan’s response brings to mind Senator Grassley’s insight from yesterday’s hearing concerning the essential nature of rights.  If one does not believe that there is a basket of natural, inherent and inalienable rights that exist independent of the Constitution, then one believes that all fundamental rights emanate from the government and can be denied or taken away by “Big Brother.”  Such a stance is not only chilling, but also antithetical to Thomas Jefferson’s assertion in the Declaration of Independence that all men are “endowed by their Creator with certain unalienable rights.”

Looking ahead, Kagan’s inability to identify any natural or inherent rights should make one question whether current rights will continue to strike her as unassailable and inherent in nature.  Will she consider the individual right to bear arms fundamental going forward? Will she consider the right to group political speech inalienable in the future?  Stay tuned…. (By Ben Keane) (more…)