The Declaration, the Constitution, and the Supreme Court

Jeffrey Rosen at WSJ:

Justice Clarence Thomas invoked the Declaration in his dissenting opinion in Obergefell v. Hodges, the 2015 case that legalized same-sex marriage. “Since well before 1787,” he wrote, “liberty has been understood as freedom from government action, not entitlement to government benefits.” Other conservatives now cite the Declaration to lay the groundwork for a Supreme Court challenge to Roe, which they claim violates the God-given right to life. When Alabama legislators recently passed a law banning abortion, they cited the Declaration, saying that “from conception … all men are created equal” and possess a fundamental right to life.

And just last week, Justice Elena Kagan quoted the Declaration in her dissenting opinion from the Court’s decision that partisan gerrymandering is a question for legislatures rather than for courts. “Is that how American democracy is supposed to work?” she asked, citing the Declaration’s insistence that governments derive “their just Powers from the Consent of the Governed.”

Whether you are persuaded by Justice Thomas or Justice Kagan, it’s striking that the debate between conservatives and liberals on the Court continues to revolve around how to read the Constitution through the lens of the Declaration. How are we to balance its sometimes conflicting “self-evident” truths? That is the ongoing question of American politics and constitutional discourse.

Kagan on the Court

Justice Elena Kagan spoke at Princeton.

I transcribed the entirety of Justice Elena Kagan's answer about the Supreme Court and institutional legitimacy because I think it's important. pic.twitter.com/BzEbXF5Z9T

— Cristian Farias (@cristianafarias) October 6, 2018

Her comments on the army and money were a loose paraphrase of Hamilton in Federalist 78:

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

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.

Demographics of the Supreme Court

If Elena Kagan wins confirmation, the Supreme Court will consist of six Catholics (Roberts, Scalia, Kennedy, Thomas, Alito, Sotomayor) and three Jews (Ginsburg, Breyer, Kagan). For the first time in its entire history, it will not have a single Protestant.

An as NPR reports, her confirmation would also mean a court consisting entirely of people who got their law degrees at Harvard or Yale.