Posted on 05/18/2010 10:13:27 PM PDT by Libloather
Kagan: Constitution as Charter of “Positive Liberties”
By Ed Whelan
May 17, 2010 12:19 PM
According to this Wall Street Journal article, during her service as a law clerk to Justice Thurgood Marshall in 1987, Elena Kagan took the position that the Constitution confers so-called “positive” rights to governmental aid, not just “negative” liberties protected against governmental interference or penalty. Specifically, with respect to one certiorari petition she expressed her “worry that a majority of this court will agree with Judge Posner that ‘the Constitution is a charter of negative rather than positive liberties.’” And with respect to another, she discussed a lower-court ruling that, relying on “evolving standards of decency,” held that the 14th Amendment (in her words) “imposes [some] affirmative obligations on state officials,” and she opined that “the holding is correct.” (By “correct,” she evidently was referring to her best understanding of how the Constitution should be interpreted, not to the Court’s then-prevailing case law.)
The project of re-interpreting the Constitution to confer a broad array of as-yet unrecognized “positive” rights (rather than leaving such matters to the processes of representative government) has long been a part of the Left’s agenda.
(I’m relying entirely on the article’s summary and haven’t reviewed Kagan’s memos myself. It ought to go without saying—but, given the apparent tendency of some folks to misconstrue things, perhaps it’s necessary to say—that Kagan’s views 23 years ago don’t necessarily reflect her views today.)
Kagan Backed Broad Interpretation of 14th Amendment
MAY 16, 2010, 9:44 P.M. ET
By JESS BRAVIN
WASHINGTON—As a Supreme Court law clerk in 1987, Elena Kagan read the 14th Amendment as permitting lawsuits against reckless state officials who ignore their duties—reflecting the liberal view that the constitutional guarantee of liberty should be read broadly.
That position was rejected by the court's conservative majority in a 1989 case, DeShaney v. Winnebago County, which narrowly defined what "liberty" the Constitution protects. The court's 6-3 ruling immunized state welfare officials who over the course of a year failed to act when repeatedly alerted to an alcoholic father's violent abuse of his four-year-old son. The continued beatings ultimately put the boy in a coma, destroyed half his brain and left him institutionalized for life, court records say.
Many liberals consider the ruling profoundly flawed, while conservatives praised it for denying recognition to what they call new rights.
The materials appear in the papers of Justice Thurgood Marshall, for whom Ms. Kagan clerked in 1987-88. Law clerks often say they seek to reflect their boss's approach to the law, rather than promote their own. Ms. Kagan's current position on the legal question isn't clear.
This is an excerpt.
http://online.wsj.com/article/SB10001424052748703745904575248620872377444.html
She has problems with the Constitution. She opposes free speech. She tried to exclude recruiters from the Harvard Law School campus, in violation of the Solomon Amendment. Of 29 hirings, she hired 28 whites and one Asian.
She’s qualified for teh Supreme Court on wqhat basis?
What about her views last years on the Citizens United case?
A case she could have won had she stuck to the 30-day ban on 3rd party TV and radio ads. But NNNOOOOOOoooo she had to argue that the executive had the power to ban books, films, downloads and anything else with political speech.
That was just nuts.
Whatever Obamao does, he does it with the intent to harm this nation, and that includes his picks for justices.
Hamilton, in Federalist 84, warned us of Kagan’s ‘rights.’
The 14th should have been struck for inherently contradicting the Constitution.
Instead, it was ruled as representing "another" form of "citizenship"...
... that of the "individual."
A reading of the following excerpt from a letter written from abroad by Thomas Jefferson to George Wythe on August 13, 1786, will illustrate this point:
"The European papers have announced that the assembly of Virginia were occupied on the revisal of their code of laws. This, with some other similar intelligence, has contributed much to convince the people of Europe, that what the English papers are constantly publishing of our anarchy, is false; as they are sensible that such a work is that of a people only who are in perfect tranquillity. Our act for freedom of religion is extremely applauded. The ambassadors & ministers of the several nations of Europe resident at this court have asked of me copies of it to send to their sovereigns, and it is inserted at full length in several books now in the press; among others, in the new Encyclopedie.
"I think it will produce considerable good even in these countries where ignorance, superstition, poverty, & oppression of body & mind in every form, are so firmly settled on the mass of the people, that their redemption from them can never be hoped. If the Almighty had begotten a thousand sons, instead of one, they would not have sufficed for this task. If all the sovereigns of Europe were to set themselves to work to emancipate the minds of their subjects from their present ignorance & prejudices, & that as zealously as they now endeavor the contrary, a thousand years would not place them on that high ground on which our common people are now setting out. Ours could not have been so fairly put into the hands of their own common sense had they not been separated from their parent stock & kept from contamination, either from them, or the other people of the old world, by the intervention of so wide an ocean. To know the worth of this, one must see the want of it here. I think by far the most important bill in our whole code is that for the diffusion of knowlege among the people. No other sure foundation can be devised, for the preservation of freedom and happiness. If anybody thinks that kings, nobles, or priests are good conservators of the public happiness send them here. It is the best school in the universe to cure them of that folly. They will see here with their own eyes that these descriptions of men are an abandoned confederacy against the happiness of the mass of the people. The omnipotence of their effect cannot be better proved than in this country particularly, where notwithstanding the finest soil upon earth, the finest climate under heaven, and a people of the most benevolent, the most gay and amiable character of which the human form is susceptible, where such a people I say, surrounded by so many blessings from nature, are yet loaded with misery by kings, nobles and priests, and by them alone. Preach, my dear Sir, a crusade against ignorance; establish & improve the law for educating the common people. Let our countrymen know that the people alone can protect us against these evils, and that the tax which will be paid for this purpose is not more than the thousandth part of what will be paid to kings, priests & nobles who will rise up among us if we leave the people in ignorance."
Jefferson's final point here is important, for by allowing the Progressives of the 20th Century to censor the Founders' ideas of liberty from America's school textbooks, from the teachings in the colleges, universities, and law schools, we have the present crop of pseudointellectuals who dominate the current Administration, media, and now, alas, threaten to become Supreme Court justices.
These folks, ignorant of the history of civilization's struggle for liberty, wish to take on the failed ideas from which the Founders fled Europe. The Chicago political elitist class, one supposes, constitutes the "nobles" Jefferson envisioned who might rise up, were the Americans to fail to teach rising generations the ideas of liberty.
(Note: underlining in Jefferson's quote added.)
Just curious here, since Henry was an arch anti-federalist.
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