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Kagan Agrees With Scalia

And it's not to conservatives' advantage--left-wing legal positivism is no better than right-wing, on this most important question, the relationship between the Declaration of Independence and the Constitution.  This came out in exchanges with Al Franken and Tom Coburn.  

UPDATE:  Coburn-Kagan exchange over natural rights and the Declaration.

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And it's not to conservatives' advantage--left-wing legal positivism is no better than right-wing, on this most important question, the relationship between the Declaration of Independence and the Constitution.

You mean the Declaration of Independence generates enforceable entitlements?

Depends on what you mean when you look at "pursuit of happiness" as a natural right. When students write my paraphrasing exercise, which is of the first two paragraphs of the Declaration, the most interesting interpretations are of that phrase. Many do think it generates entitlement, in that they are guaranteed a right to pursue happiness as they see fit, which often includes less work, more leisure, the education they want to have that will lead to the job they want to have, the house they want to own, and all sorts of other things that they think will make them happy. I am not saying my groups of Ohio community college students are correct in their interpretation, I am just saying what that interpretation very often amounts to and that I think they are a generally representative bunch, ranging in age from 15 to 62 years, so far. What is the most common response is that government must protect life, liberty and my pursuit of my particularly defined happiness. "That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

It is an understanding of natural rights in the United States. Kagan, as well as many other justices on the Court, reject the natural rights tradition in the history of the republic. Ms. Kagan, like Scalia, does not believe that there are natural rights held by equal individuals outside of the Constitution. In other words, the rights that we have as US citizens only exist because we placed them in the Constitution not because of the rights that are found in nature and supersede any form of government. These external and natural rights are described in the Declaration of Independence. If this is denied, it appears that all rights are civil rights and can be taken away; furthermore, if there is no Constitution, there are no rights. Moreover, it degrades and misrepresents our system of government as a democratic and majority - ruled government because it was the majority that determined our rights. None of the Framers of the Constitution in 1787 believed that the rule of the majority was a source and foundation for the rights contained in the Constitution. Majority rule only receives legitimacy through the preceding recognition of natural and equal rights of all individuals - this is a necessary condition.

Ken Thomas's point is that right wing positivists are as problemmatic as left positivists, which has been the limitation of all Republican appointees to the court except Clarence Thomas. So those jurists who, like Robert Bork, use positivism to oppose entitlements are on shaky ground, which is nothing more than what the Court has itself upheld or established, for all practical purposes. Kagan is reflecting her academic and legal training, of course, in which no credence is given to the idea that human beings possess inherent rights as a gift from their Creator. The most I have heard any liberal say (Joe Biden, for instance) is that human beings possess rights by virtue of being human beings, but that begs the question of the principle in terms of which we have such possession, not to mention leaving the issue completely in human hands. Obedience to the laws of nature and of nature's God is more solid ground than mere assertion of rights. In any case, positivists avoid the dilemma by denying its existence. That culminates in our modern version of "justice is the will of the stronger," or might makes right: right comes from power rather than the reverse.

The widespread belief (by those from 15 to 62) in the postivists' doctrine results from the latter's long domination of the public schools, higher education and the media, as well as the legal profession. Politically, the corruption began with the early progressive movement, reaching its high point in the Roosevelt and Johnson administrations. Progressives and Democrats stole the Declaration's principles for their redistributiionist purposes. Conservatives and Republicans must take them back, for the country's sake.

Philo-Publius, to bring this down to particualrs, do you believe that Justices should use judicial review to strike down laws that might not violate any constitutional provision but might be said to violate natural rights( like say a state law that pays large cash bonuses to women who have late term abortions?)

Pete, these particulars are often difficult on which to reach a firm conclusion. To begin with, judicial review itself is entails a certain interpretation of the Constitution. This now common judicial practice of the Court is a result of the interpretation of former Chief Justice John Marshall as a result of the case of Marbury v. Madison. It is an interpretation of Article III of the Constitution because the concept, or even the words "judicial review" are not found in the Constitution. I apologize if you are already familiar with this, but I only explain to show my meaning. It is also important for me to reiterate my earlier point. If one holds the belief, as I do, that the principles of the Declaration (i.e. the existence of natural rights and equality of men) are what gives the Constitution credence, the belief that those principles are the same will naturally follow. Every word of the Constitution can be found to be in accordance with the higher "Laws of Nature and Nature's God" of the Declaration. Lincoln calls the Declaration the "apple of Gold" and the Consideration is the "frame of silver" that surrounds the Declaration. With this understanding, there would not be the instance of a law violating natural law, but not constitutional provisions because, according to this understanding, it would necessarily violate Constitutional provisions as well. When it would violate natural law but not those of the Constitution in the example you provided, I would contend that is not really a law at all as it violates natural law and is, therefore, unconstitutional by its own nature. In conclusion, despite my views on judicial review, as that is a sticky situation in and of itself, if that is the basis for striking down unconstitutional acts, by all means.

Philo-Publius, so would Supreme Court Justices in the pre-Civil War-era been right to use judicial review to strike down state laws that protected slavery (and federal fugitive state laws) even thought those laws might have been fully consistent with the text of the Constitution (I know it gets complicated with the fugitive slave law?) If yes, would Lincoln have agreed?

Pete, if I were to say no, I would be asserting that the Constitution was a pro-slavery document that was constructed to protect the insidious institution and that is most certainly not true. Those instances of constitutional consistency with the fugitive slave laws are based upon a misinterpretation of the Declaration of Independence and a vile augmentation of a natural rights understanding. Yes. I believe the Supreme Court would have that right and yes I believe Lincoln would agree. I will use two instances to explain why I believe this to be true. The first instance is in the famous Lincoln-Douglas debates. In one moment of those debates, Douglas provides his argument for the states to decide for themselves whether or not they may choose to be a slave state or not a slave state. This, he calls "popular sovereignty." In other words, slavery may be voted up or down based upon a majority consensus. Douglas was not concerned with the outcome of up or down. He was only concerned with the majority will being exercised. As a result, he believed that the majority was a foundation for enumerating rights. He was not concerned with the morality of slavery as the deciding factor of its existence--he was not concerned with the natural rights that slavery violated. This is an example of moral relativism. Lincoln obviously disagrees with Douglas as he opposes slavery as it violates natural rights and is immoral. He believed that no majority could ordain something that is immoral, regardless of how many subscribe to that notion. The second instance involves the Supreme Court decision in the case of Dred Scott v. Sanford. To provide a brief summary of the case, Scott was a slave, who by this decision was forced to return to his former master under the terms of a fugitive slave law. Chief Justice Taney, who delivered the decision, stated that people of African descent, slave or free, may not sue in court, (Scott was arguing his freedom). The second part of the decision was that the US Constitution never protected them and they could never become US citizens. Finally, the decision also included that the US Congress had no authority to prohibit slavery in federal territories. This is the misinterpretation of the Declaration I spoke of earlier. Taney used a flawed understanding of the Declaration to prove his point, arguing the document never included those of African descent. Then, by using his own form of "judicial review," upheld fugitive slave laws based upon his understanding of the Declaration. Of course Lincoln would disagree. I apologize once again for the length but I believe it is necessary. In his own words, Lincoln responds to the Dred Scott decision as follows:

"Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include Negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack."

I hope this helps. I do not pretend to understand all of this perfectly, nor do I claim to defend my position with similar perfection. I aim to understand our sixteenth president as he understood himself as well as the great men declared the equality of all men and those who gave us our Constitution.

Philo-Publius, so the Declaration can be used, by judges, to invalidate policies specifically sanctioned by the Constitution (in this case Article IV, section 2, paragraph 3?) I think Taney was wilfully wrong in Dred Scot, but does anything that Lincoln say indicate that he believed that judges had the authority to abolish slavery through judicial review regardless of the actual text of the Constitution? Was Lincoln's statement a call to democratic political activism within the limited but significant powers granted by the Constitution to elected bodies (as opposed to a Supreme Court that had imposed policies contrary to what had been assumed to be the legitimate powers of the US government not only at the adoption of the Constitution, but even under the Articles of Confederation) or a suggestion that the courts could impose the policies favored by slavery opponents regardless of the text of the Constitution? When Lincoln said in his first inaugeral that he believed he had no lawful right to interfere with the institution of slavery in the States where it existed, did he believe that the Supreme Court had the lawful right to virtually abolish the institution?

There is a distinction between a rejection of notions of 'natural law' or 'natural rights' and a rejection of the notion that natural law or natural rights, unmediated by the language of positive law are enforceable by judicial decree. Natural law or natural rights would still be guides to the composers of statutory legislation (not judges).

Judge Bork's view is that a judicial opinion invalidating a piece of statutory legislation must be fairly discoverable in the Constitution's text and history. In his scheme, the responsibility for rendering the Constitution or the statute congruent with abstract justice lies with the legislative branch. Bork has been quite precise and explicit on this point: the proper disposition of the judge is not one of 'moral relativism' but of 'moral abstention'.

Pete, let me address a few things:

1. The part of the Constitution you cite had no bearing in the Dred Scott case. At the time of the trial, he was legally free and his freedom was appealed by his dead master's widow. Taney does not use this argument in his decision. Furthermore, the Declaration cannot be used to invalidate policies in the Constitution. This clause, as you point out, is not in contradiction to the Declaration or my position. If you look to James Madison's notes of the Constitutional Convention this will become clearer. When the contents of this clause was being discussed on September 15 (two days before it was signed), the original phrasing read as follows: "No person LEGALLY held to service or labor in one state escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due." This was changed. They struck out "no person legally held to service or labor in one state escaping into another" and changed it to "no person held to service or labor in one state, UNDER THE LAWS THEREOF, escaping into another" which is as it appeared in the Constitution prior to the 13th Amendment. By adding "under the laws thereof," and removing "legally," Madison writes that it removes the notion "that slavery was legal in a moral view." It does so because, once again, the Constitution is not a pro-slavery document. If the term "legally" was used, it would mean "legally" unto the Constitution, thus a Constitutional endorsement of slavery. However, the new phrase of "under the laws thereof," means the laws of the states and only the laws of the states in which slavery existed. There is no law that establishes slavery in Constitution. As a result, it would appear that this clause is in accordance with the Declaration as well. Article IV, Section 2, Clause 3 is not a contradiction of my premise.

2. The clause exists because slavery existed. It could not be ignored, so they had to deal with it. Like Lincoln said of the founders and the Declaration and natural rights, "They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit." When he made the statement in his first inaugural as you mentioned, he was right then and there is no contradiction.

3. Judges cannot abolish slavery. There is not a law in the Constitution establishing slavery. The Supreme Court deals with laws and Court Cases. Their judicial review extends to each, specific case. The Supreme Court did not have the lawful right to abolish slavery because of the logical barriers I explained earlier. The Constitution contains contingencies in light of slavery. It does not include an establishment of the institution or guarantee its protection.

4. If the Framer's explicitly denounced slavery, their would be no Constitution. I know this is not ideal or it may seem incorrect to do what they did, but this is politics. It is a realm of compromise and action. The ideal circumstance does not always prevail.

Art, the point is that the Declaration itself does not have enforceable entitlements by itself. The Declaration of Independence is not a legal document, it is a declaration of the American mind and a recognition that these natural rights exist. What I think is getting confused is that you are assuming that the Declaration and the Constitution are completely different ideas, that there is something in the Declaration that is absent in the Constitution. The Constitution is the legal embodiment of that American mind and includes the ideas of the Declaration in it. So, when someone has their rights infringed upon by someone else or by a governmental body, we do not say that is undeclarational, but it is still unconstitutional. The best showing of the protection of these rights is that the Bill of Rights were created in order to protect the Natural rights of the people, (which is the purpose of the Constitution in the first place when one understands the Declaration). What Kagan and the others are saying is that the she does not "hold an opinion" about the Rights talked about in the Declaration, and she will only uphold those "rights" that are in the Constitution. The problem is that the intended rights of the Constitution and the Rights of the Declaration are one and the same, but the Declaration is just declaring that they are there and the Constitution is the actual legal protection of them. What must be understood is that these rights are natural rights and not legal rights. We hold a natural right to the freedoms that are talked about in the Constitution, but the Constitution is just protecting them in the realm of the political, and if the Constitution was abolished (God forbid), we would still hold the same rights that are talked about in the Constitution because our rights are not based upon that documents existence.

Philo-Publius appears to believe the same thing, (even though it may have sounded a bit confusing).


1. On Dred Scot, I was mentioning that Taney was being dishonest in his descritption of the common opinion of the humanity of blacks at the time of the writing of the Constitution. You are right that there is no law that establishes slavery in the Constitution in the sense of defining the institution), but there is a clause for the return of runaway slaves and it seems to have been understood atthe time that the federal government could not ban the institution of slavery in states whose state governments chose to establish slavery. Lincoln seems to have thought as much.

2. Do you think he meant triking down the state laws that made slavery possible through judicial review?

3. Judges could have struck down the state laws that made slavery possible. I think the difference between that and abolition would have been lost on most people.

4. Agree entirely, but that does not mean that the Constitution included a secret time bomb that would allow judges to invalidate state laws establishing slavery on the grounds that they were violations of natural rights. I think Lincoln was right, but not in the sense that you seem to mean. I think Linclon meant through democratic action within the elected branches and (eventually, very eventually) through formal amendment of the Constitution

What Kagan and the others are saying is that the she does not "hold an opinion" about the Rights talked about in the Declaration, and she will only uphold those "rights" that are in the Constitution. The problem is that the intended rights of the Constitution and the Rights of the Declaration are one and the same

Eckol, she can only legitimately invalidate legislation which is in conflict with the Constitution, not with any other law or piece of correspondence. The utility of the Declaration for that purpose would be as a guide to contemporaneous understandings of certain generic terms.

The Declaration does not typically operate as an independent authority justifying this or that particular action, though it might, for example, inform an executive action regarding a prudential decision (e.g., Emancipation Proclamation). The Declaration's principal constitutional purpose is that it establishes the principle of a written Constitution, with its separated and ennumerated powers, republicanism, and limited government. It answers the "why" question implicit in all political and constitutional issues.

Art Deco,

You are correct about Bork's doctrine of judicial restraint, which is defensible as far as it goes, but it is in fact based on moral relativism and an explicit rejection of the nation's founding principles. (He is an admirer of Justice Oliver Wendel Holmes, an unabashed moral relativist.) Judges are as bound by those principles as legislators and executives, even as all are bound by the text and rational interpretation of the Constitution. Bork blames the principle of equality for the nation's descent into immorality, hence his "moral abstention," which is the equivalent of moral relativism for its declared indifference and less-than-covert real hostility to equality. Bork makes a common conservative mistake, viz., to accept as authoritative the liberals' corruption of equality from a doctrine of rights and duties to one of radical egalitarianism. This is throwing out the natural rights baby with the progressive bathwater. If Bork would have judges acquiesce in legislation which conflicts with the principle of equal rights to life, liberty and the pursuit of happiness, he thereby encourages them to abandon their constitutional duty. Yes, a judge cannot invalidate a law which is sanctioned by the Constitution, but he is free to overturn laws that are not. Federal judges before the Civil War routinely acknowledged the constitutional status of slavery, but they also declared that slavery existed only by law and not by right. Hence, when Congress passes a law that offends the Constitution without its slavery protections, it is simultaneously offending natural rights principles. The latter are incorporated into the former, as Clarence Thomas said at his confirmation hearings regarding the equal protection clause of the 14th amendment.

One may admire the thinking of an individual and not subcribe to it in toto (or much at all). Judge Bork is a Catholic convert. Reconciling that with moral relativism would be quite an intellectual exercise.

That aside, judges are bound to apply the written Constitution, statutory law, administrative rules, and case law. Judges are not bound to apply extra-legal conceptions of justice and all kinds of mischief ensues if they fancy their understanding of justice trumps that incorporated within the law as enacted. Enunciating such a principle is not an endorsement of moral relativism; it is simply an understanding of the vocation of the jurist as opposed to the vocation of the politician or the citizen.

If Bork would have judges acquiesce in legislation which conflicts with the principle of equal rights to life, liberty and the pursuit of happiness, he thereby encourages them to abandon their constitutional duty.

Article I delegates specific legislative powers to Congress and the first ten amendments as well as several passages incorporated within the seven article of the main document define what the discretion of Congress is. Scant need to make reference to John Locke or Th. Jefferson. Again, the federal judiciary derives its authority from the Constitution, not any other written instrument.

But for that matter, on what authority is the legislature or the executive explicitly bound to an extra-legal instrument such as the Declaration? Your remarks here are sensible, but I do not see exactly how an objection to a justice's proclaimed fidelity to the Constitution informed by the Declaration, as opposed to the Constitution qua Constitution, is exactly harmful, or contrary to the dictates of the Constitution itself.

The federal judiciary has derived its authority from a variety of sources -- sometimes as vague as "history" or "tradition" -- and it seems to me at least that, like the massive entitlement programs, it is extremely difficult to roll-back these precedents. The reason Kagan is being asked about her opinion of foreign law right now is because if she introduces such an item into the judiciary of the US, it will be extremely difficult to afterwards whitewash. Much better to have a jurist who will recognize the DofI as the locus of power as opposed to some bench sitting in, say, France.

Owl's points about the relevance of the Declaration of Independence to the understanding of our Constitution and laws are well taken. Merely because the Constitution did not incorporate the whole of Locke's teaching on natural rights does not mean that it is understandable without any reference at all to that teaching. The Declaration clearly embodies that teaching. A careful reading of the Declaration of Independence, which is the first of the organic laws of the United States (as established by the civil code inaugurated in 1876, the centennial of the Declaration), will show the Constitution's dependence on the Declaration. The Declaration holds equal liberty to be a natural right, and the Preamble to the Constitution declares the security of liberty to be a goal. While the Constitution is clearly and properly dedicated primarlly to establishing a government of limited scope and power, its authors took pains to protect existing rights, particularly in Article I, sections 9 and 10, as well as in Article IV, section 2.

The Declaration holds that governments are established legitimately only by the consent of the governed, and faults the King of England for suspending elective legislatures. The Constitution provides for the election of members of Congress and the President, and the appointment by elective bodies of federal judges and other officials.

The Declaration defends the independence of the legislative and judicial branches. The Constitution establishes separate and independent legislative, executive and judicial branches.

The Constitution was compromised by the political necessity to provide security for slavery as the price of southern acceptance of the document and the national government. The basis for opposition to slavery and its ultimate aboliton was the Declaration, honored by the passage of the 13th, 14th and 15th amendments. On the other hand, the progressive doctrine of evolving government was the basis for amendments in the early 20th century. When examining doctrines influencing the Constitution, is it not proper to distinguish between the doctrine that inspired it and the doctrine that undermines it? The text of the Constitution can speak for itself in most cases, but interpretation informed by the Declaration's premises for the Constitution's conclusive statements is more true to its true and original meaning.

How about, "true to its original meaning"?

Lockean principles do inform the Constitution to a considerable extent--its silence on race, class, sex/gender, and religion (until the 1st A), for example. But still it makes no sense to me that the Declaration can be used an authority for judges to Declare laws unconstitutional. That, in effect, requires lawyers to be philosophers. Before the relevant Amendments, the anti-slavery character of the Const could be discerned from the Const itself, which limited the legal protection of slavery to what positive law actually said and nothing more. It didn't mean that the laws protecting slavery in the states were unconst. It's certainly not the case that every law that creates entitlements or mandates some redistribution etc. should be struck down by the Court as unconst. I agree that Scalia goes to far in his "positivism," but there's a common sense about it: Judges are bound by what the law actually says. Taney's error was not in being a positivist but in being an erroneous originalist--he didn't follow what the Const and even the Declaration actually said but viewed the law through the lens of a false opinion about who the Africans brought over as slaves were understood to be at that time.


I did not say, nor does anyone who takes the Declaration seriously say, that a judge would be justified in striking down a law on the grounds that it violated the Declaration. But a judge should know what the actual philosophical ground for the Constituion is. As long as slavery was protected, it was not unconstitutional, but it was clearly incompatible with the Constitution of equal liberty based on the consent of the governed. You are quite right to point out that the Constitution was not pro-slavery in granting it protection, even if the practical effect was to give slavery a legitimacy in law and ultimately in principle that it did not deserve. All the more reason, as Lincoln repeatedly said, to put slavery on the road to ultimate extinction. Understanding the Declaration and its relationship to the Constitution does not require judges to be philosophers, only well-informed and well-educated.
There was a time when Supreme Court justices believed that laws that redistribute income were unconstitutional, and so ruled, back in the Wilson and Roosevelt administrations, and even before that with an income tax law in 1894. I can appreciate your attempt to describe Taney as a kind of origiinalist, as he took great pains to establish that protection of slavery as a right was the intention of the founders. But by ignoring the Declaration and stressing the Constitution's protections for slavery (wherein the terms slave or slavery are never used, as they were in the later confederate constitution), Taney was certainly arguing solely from positive law. In any case, this shows the serious limiations of constitutional orginalism, which cannot distinguish between those parts of the Constitution which are just, and those parts which are unjust.

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