Friday, July 2, 2010

Kagan and Natural Rights

At her confirmation hearing, Supreme Court nominee Elena Kagan had a revealing exchange with Senator Tom Coburn (R-OK):

KAGAN:

Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.

COBURN:

I'm not asking you about your judicial. I'm asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone that the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn't -- he didn't say that was a constitutional right. He said that's a natural right. And what I'm asking you is do -- do you agree with that?

KAGAN:

Senator Coburn, to be honest with you, I --I don't have a view of what are natural rights independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States.

COBURN:

So -- so you wouldn't embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren't given in the Constitution, that they're ours, ours alone, and that the government doesn't give those to us?

KAGAN:

Senator Coburn, I believe that the Constitution is an extraordinary document, and I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN:

Well, I understand that. Well, I'm not talking about as a justice. I'm talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN:

Senator Coburn, I -- I think that the question of what I believe as to what people's rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief, if I had one or...

COBURN:

I -- I would want you to always act on the basis of a belief of what our Declaration of Independence says.

KAGAN:

I -- I think you should want me to act on the basis of law, and -- and that is what I have upheld to do, if I'm fortunate enough to be concerned -- to be confirmed, is to act on the basis of haw, which is the Constitutions and the statutes of the United States.