Supreme Court nominee Elena Kagan is getting some flak because under questioning by Sen. Tom Coburn, she refused to recognize “natural rights” outside of the U.S. Constitution, presumably including those mentioned in our Declaration of Independence. The Oklahoma Republican then asked Kagan if she believes American citizens have “a fundamental right” to own firearms for self-defense, which he noted the great English jurist William Blackstone described as a “natural right.” Kagan responded by saying, “To be honest with you, I don’t have a view of what are natural rights independent of the Constitution.”
Coburn pressed, asking Kagan if her response meant “you wouldn’t embrace what the Declaration says, that we have certain God-given rights, and that among these are the right to life, liberty and the pursuit of happiness?” Kagan replied that “my job as a justice is to enforce the Constitution and the laws.” She emphasized that she was “not saying that I do not believe there are not rights pre-existing the Constitution and laws.”
If this brief, somewhat esoteric exchange seems irrelevant or of little consequence, it is actually about as close as the Kagan confirmation hearing has come to a genuinely substantial discussion of a fundamental issue of constitutional law. That issue is this: Do we each have rights because they are granted to us by government, or because those rights exist whether government recognizes them or not? That’s what the American Revolution was all about. King George III and the English Parliament said our rights were no more or less than what they granted to us. We replied in our Declaration of Independence that we each have “certain inalienable rights” that are independent of and superior to the will of our governors, thus legitimate law requires the consent of the governed.
Strictly speaking, Kagan was right to insist that her duty as a Supreme Court justice would be to rule based on the Constitution; it is the governing document for all Americans, including those we elect to govern us. But her carefully chosen words on this issue could come back to haunt her. Note that she described the duties of a justice as to “enforce the Constitution and laws,” thus suggesting that the latter command an authority equal to the former. In fact, the Constitution is superior to the laws because they must conform to its requirements. But if the rights recognized by the Constitution aren’t independent of and superior to government, then they will be whatever those who write and interpret the laws say they are, just as George III and the English Parliament claimed. Senators should require Kagan to explain further and in detail her understanding of the relationship between our inalienable rights and the Constitution.