Strengthening Constitutional Self-Government

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Even a Brit Gets It: Will GOP Senators?

Accumulating Lincoln quotations, Tony Blankley spotlights Supreme Court nominee Elena Kagan's dismissal of the inalienable rights of the Declaration of Independence for understanding the Constitution.  Will indignant Republican Senators rally around the principles of their Founder?   Alas, what makes one think they will this time? 

Blankley:   "Without those rights, the body of law is a corpse - a soulless, purposeless, manipulable, disposable, dead, material thing. If Ms. Kagan does not know that, then she knows nothing of our law."  Again, the same condemnation can be made of politicians of all parties.  Moreover, does any law school teach the proper respect for the Declaration of Independence?  In that sense, former Harvard Law Dean Kagan has a bipartisan following.

Here's a poignant cinematic reminder of an earlier Brit's Lincolnian devotion to American principles.  (Charles Laughton's Ruggles is a British servant won by a Westerner in a poker game abroad.)  

Categories > Courts

Discussions - 5 Comments

The most conservative proffesor at Toledo is Strang, yet as this law review article makes clear the answer is no.

Lee J. Strang, Originalism, the Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation?, 111 Penn. State Law Review 413 (2006)

But really appart from Jaffa who doesn't teach at a law school and perhaps Gerber who teaches at William and Mary, very few even do so much as write a law review article on the Declaration of Independence.

It seems plausible to me that a number of justices, lawyers, senators and proffesors would entertain the idea that all men as created equal and thus entitled to be rulled by consent. But there is a sense in which "Mile high" big picture agreement isn't that usefull or concrete in so far as even Pelosi sees the fullfilment of the declaration in the newest healthcare bill(also as an aid to life, liberty and the persuit of happiness). The american political scene and the law that provides the architecture for such is certainly always in a tug of war with questions of equality and consent and this is even the case if you are talking about legal principles older than the constitution or the declaration, for example the Rule against perpetuities goes back to 1600 at least and repeal of it in some states threatens to permit massive trusts which would allow an aristocracy/dead hand control, thus raising questions about equality and consent(control of assets/property).

Thanks for the reference.

"Apple of Gold in a frame of silver!"

It seems to me the question is not whether the Declaration of Independence and the words it contains is a guiding light for the formulation of our nation's laws. But rather whether the concept of inalienable rights is a reality or not.

The temptation is to fall into debate about the specifics of that, but I ask not that but whether or not the essential concept of inalienable rights is reality.

If not, then we simply fall back into a relativistic argument about the specifics of those rights.

But if we agree there is a set of inalienable rights that are a subset of cold, sober reality ... then that sets a stake in the ground.

I'm not sure the progressives of today's era are willing to accede to the metaphysical existence of inalienable rights as a component of reality. That is too confining.

Rather, I think they reserve for themselves the right to define those rights according to their passing preferences at the moment.

The focus on the Declaration as a foundation of law making is, I think, a distraction. An intentional distraction. It seems a focus on the foundational principle of the reality of inalienable rights is the key.

I doubt Kagan truly believes in that. I doubt she truly believes in anything but herself.

Where a GOP senator stands on Kagan, and what he/she says about her, and how well, says A LOT. In part for the reasons cited in this post.

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