Free Republic

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...

By applying positivism instead of natural law, 19th century courts burdened American racial history to this day. When Thomas Jefferson wrote in the Declaration of Independence that "all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness," he could not have meant then what we understand these words to mean today. When the framers of the government wrote in the Constitution that "No person shall be...deprived of life, liberty, or property, without due process of law," and that the Constitution is "the supreme...

U.S. Supreme Court says cities have broad powers to take property.