Supreme Court nominee Elena Kagan made the extraordinary admission to Sen. Tom Coburn (R.-Okla.) that she doesn't "have a view as to what natural rights are" as expressed in the Declaration of Independence.
Her comments came in answering a question from the senator on the right to bear arms. Sen. Coburn asked, ""Do you personally believe there is a fundamental right in this area? Do you agree with Blackstone? He said that [the right to self-defense through gun ownership] was a natural right."
Kagan responded, "To be honest with you, I don't have a view of what are natural rights independent of the Constitution."
"So," Coburn asked, "you wouldn't embrace what the Declaration says, that we have certain God-given rights" and that among these are the right to life, liberty, and the pursuit of happiness?"
Kagan answered, "I believe that the Constitution is an extraordinary document, and I am not saying that I do not believe there are not rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws."
Coburn continued to press her, and she was insistent: "[Regarding] the question of what I believe as to what people's rights are outside the Constitution and the laws, that [as a judge] you should not want me to act outside the basis" of the Constitution and the laws. I think you should ask me to act on the basis of law, which is the Constitution and the statutes of the United States."
The nominee, who so admires Justice Thurgood Marshall, for whom she clerked, misses the importance of the Declaration of Independence, which outlines the very rights upon which judges relied to affirm the rights of blacks to personhood and freedom.
Abraham Lincoln understood that the rights in the Declaration of Independence necessarily underlaid all the rights in the Constitution. He said, "I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a Negro, why not another say it does not mean some other man?"
President Reagan, reflecting upon Lincoln's statement as it applied to the abortion issue, added, "When Congressman John A. Bingham of Ohio drafted the 14th Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are 'entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.' He said the right guaranteed by the amendment would therefore apply to 'any human being.' Justice William Brennan, writing in another case decided only the year before Roe v. Wade, referred to our society as one that 'strongly affirms the sanctity of life.'"
Kagan's refusal to acknowledge the fundamental rights enumerated in the Declaration of Independence shows a troubling disregard for the principles upon which our nation was founded.
Ironically, just before revealing her lack of a "view" on what the Founding Fathers called "unalienable rights," she made a "pledge" to Sen. Coburn that she would reread The Federalist Papers.
