It’s too bad really. Elena Kagan has a brilliant mind and is supremely qualified academically to be a Supreme Court justice, but the confirmation hearings and a reading of some of her opinions reveals a fundamental wrong-headedness about natural rights.
The wordings found in the Declaration of Independence (which is not the basis of law), and the Bill of Rights and Constitution (which are the basis of law) make it very clear that those documents are acknowledging pre-existing rights that all people have. The Bill of Rights and the Constitution do not confer any rights on the people. Those documents prohibit the government from infringing rights the people already have.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (The right is preexisting.) “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (The right already exists.) “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” (The right already exists.) And so the wording is throughout the Bill of Rights and Constitution.
The founders were very clear in their position that those rights are inherent in every person–God-given if you prefer. No man and no government has the power to confer those rights, so the founding documents of the United States do not make the error of attempting confer rights. Instead, those documents are the basis of laws that prohibit the government from infringing the rights we as human beings already have.
Yes I know that if you ask people on the street, many of them would agree with the statement: “our rights come from the Bill of Rights.” Well they don’t, and the distinction is critically important for a Supreme Court justice. Elena Kagan does not agree with the position of the founders on natural rights. In various opinions that Kagan has written, she uses the word “confer” with regard to rights protected by the Bill of Rights. She worded her opinions to say that the Bill of Rights “confers” those rights, and this is wrong-headed. It’s so wrong-headed that in my opinion it disqualifies her from serving as a Supreme Court justice, regardless of any other opinions she may have. She doesn’t agree with the fundamental thinking behind our founding documents. Instead believes that government has the power and the ability to confer rights on the people. Government has no such power. Despots and dictators like to believe they have those powers, pretend to have those powers, and use physical force to make it look like they have those powers. Perhaps Ms. Kagan would do better serving on the Supreme Court of a country like Myanmar, Iran, or North Korea, not the United States.