Kagan and the Constitution

It is frustrating having politicians talk about rights.

Last week, Supreme Court Justice nominee Elena Kagan, the White House’s solicitor general, was being questioned by Sen. Tom Coburn (Okla.) about natural rights.

The day before, he had unsuccessfully tried to get Kagan to concede that the constitution’s Commerce Clause does not give government the power to mandate by force (“Law is force,” Bastiat said) that Americans must consume fruits and vegetables. Kagan, by the way, never answered definitively but seems to say that non-economic activity, which presumably means eating, falls outside the scope of federal powers. Yet, in the case of marijuana, just possessing the substance was considered a commercial activity if the law were part of a larger regulatory (control) framework. So a stand-alone law mandating everyone in America eat their veggies would be unconstitutional, but if it were part of a national health care initiative, it is probably a go.

In his follow-up questions the next day, Coburn asked if self-defense was a natural right pre-existing the constitution. Kagan’s response was revealing. According to a CNN transcript, she said,”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.”

I am not defending the constitution by any means, nor do I expect the government to abide by its own rules and laws. However, it should be pointed out when government people do not live up to their own rules. Kagan is directly in conflict with the ninth amendment of the Bill of Rights, which states that “the people” possess other rights not previously enumerated. Famously, the founders said that we are endowed “with certain unalienable rights …. That to secure these rights, Governments are instituted among Men.” For Kagan to say “I don’t have a view of what are natural rights, independent of the Constitution” means she is completely unfit by the government’s own standards to serve on the Supreme Court.

I cannot just fault Kagan. Though widespread, the idea that government should exist to defend our liberty and property is already completely contradictory. Government systematically assaults our liberty and property. From “all men are created equal” to “Congress shall have Power To lay and collect Taxes” signals a complete defiance of inalienable rights and the natural law of equal liberty. Taxation is modeled on the idea of paying royalties for the privilege of engaging in commerce, owning property or earning a living.

I am aware Kagan is all but guaranteed to be confirmed. She will be one of nine people who ultimately interpret what the constitution means. So when it comes down to it, the rule of law is still the rule of men (and three women). But through indoctrination and guilt-laden propaganda, people have come to accept and embrace the authority over them. The whole show — the law, the authority and, ultimately, the government — are just manifestations of bad ideas.

Ideas fuel fear and avarice. You cannot shoot an idea or dynamite a myth. They are invincible to violence, even self-defense. Luckily, ideas also fuel truth and beauty.

Liberty supporters are at a distinct advantage though. Lies require constant supervision and constant maintenance. Lies must be heaped upon lies. Truth and beauty stand on their own. Like scientists, philosophers and intellectuals must transmit their discoveries if their work is to have any value. In business, that is the role of the entrepreneur, to turn concepts into consumables. For truth and beauty to have any power, they too must be communicated and acted upon to be made real. They must be practiced. That is the most admirable role of the liberty activist. That is how we will get our certainty and our freedom now, by living it.

Image credit: Cayusa, with Creative Commons license