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Kagan’s Ouija-Board ‘Originalism’

In a Tuesday morning response to questions from Sen. Patrick Leahy, Elena Kagan engaged in a bit of mind-reading speculation about the Framers’ intent in crafting the Constitution.

Some constitutional provisions were "meant to be interpreted over time," Kagan said, citing the Fourth Amendment’s protections against unreasonable searches and seizures.

The Framers "knew that the world was going to change," the Supreme Court nominee said, and could not have known about such developments as bomb-sniffing dogs, so  application of the Fourth Amendment could change over time.

"In that sense, we are all originalists," Kagan said.

Expect Republican senators on the Judiciary Committee to disagree with Kagan’s claim to originalism. Kagan’s exhange with Chairman Leahy clearly indicates that the nominee is a believer in the "living Constitution" which can be amended on the fly at the whim of a Supreme Court majority. 


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