Elena Kagan's disturbing refusal

Natural Reluctance
Elena Kagan's disturbing refusal to acknowledge pre-existing rights

Jacob Sullum

From last week's confirmation hearings, we learned that Supreme Court nominee Elena Kagan likes to eat in Chinese restaurants on Christmas. She did not say how she spends Independence Day, but evidently it does not involve reflecting on the meaning of our founding document.

According to the Declaration of Independence, people create government to protect their pre-existing, inalienable rights. Yet when Sen. Tom Coburn (R-Okla.) asked Kagan whether armed self-defense is one of those rights, she professed agnosticism.

"I don't have a view of what are natural rights independent of the Constitution," Kagan said. In two days of testimony replete with the evasive maneuvers that she once complained had rendered Supreme Court confirmation hearings a "vapid and hollow charade," her silence on natural rights was one of the most disturbing things she didn't say.

In addition to eschewing statements that might "provide some kind of hints" about how she would vote on a case that could conceivably come before the Court, Kagan declined to offer opinions on subjects, such as natural rights, that she deemed irrelevant to the Court's work. In short, she was happy to answer any question, as long as it was neither related nor unrelated to the positions she would take as a justice.

But was Kagan right to say that natural rights should play no role in constitutional interpretation? "I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws," she said, but "you should not want me to act in any way on the basis of such a belief, if I had one," because "my job as a justice is to enforce the Constitution and the laws."

Although justices should not read their own idiosyncratic notions of natural rights into the Constitution, the concept is essential to understanding what the Framers were trying to do. In addition to the Declaration of Independence, which reflects the Framers' philosophical premises but does not have the force of law, the Constitution itself repeatedly refers to pre-existing rights.

The First Amendment does not say, "The people shall have a right to freedom of speech." It says, "Congress shall make no law…abridging the freedom of speech." Likewise with "the right of the people to keep and bear arms" and "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures."

These are not rights the government creates; they are pre-existing rights the government is bound to respect. There is no other way to make sense of the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

By contrast, here is how Kagan summarized the Supreme Court's conclusion in the 2008 case D.C. v. Heller (emphasis added): "The Second Amendment confers…an individual right to keep and bear arms." What the decision actually said is that the Second Amendment acknowledges that right. "It has always been widely understood," the Court explained, "that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right" that was considered "one of the fundamental rights of Englishmen."

That point was crucial in deciding, as the Court did last week, that the Second Amendment applies to the states via the 14th Amendment. Some theory of pre-existing, fundamental rights is also necessary in applying neglected yet important constitutional provisions such as the Ninth Amendment and the 14th Amendment's Privileges or Immunities Clause.

Constitutional interpretation aside, Kagan's reluctance to endorse the concept of pre-existing rights was troubling because without it we cannot draw moral distinctions between legal regimes. How can we condemn a dictator for legally authorized oppression, or say that our own Constitution is better now that it bans slavery than it was when it tacitly approved the practice? The traditional American answer is that people have certain rights by virtue of being human, regardless of what the law says.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.