BLANKLEY: Lincoln or Kagan

Our rights have deeper roots than the Constitution

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We have seen in the current congressional session how indifferent our government is to even the formalities of positive law and procedure. Less than two weeks ago, the House decided to “deem” a federal budget passed - though it has not been passed. A few months ago, it was prepared to “deem” a transforming socializing health services scheme passed without voting on it.

Our Founders, in the opening decades of our national life, built into our governing fundamentals many redundancies - fail-safes - to protect us from tyranny, either of the creeping or of the sudden kind. First, a Congress of the people, two branches to check each other, an executive branch itself in check with the others, and the states in sovereign balance with the federal powers. And all those powers subordinate to the undergirding sovereignty of the people.

The very power of the Supreme Court to exercise judicial review derives precisely from the court’s being empowered by the pre-constitutional sovereignty of the people in their inalienable right to protect themselves from any undue state restraints on such sovereign rights (see “Empire of Liberty,” Gordon S. Wood, pages 443, 448-451).

And now, proposed to be intruded into that temple of justice - that last fail-safe of freedom - comes the form of Elena Kagan. Cold to the passion of our Declaration of Independence. Ignorant of its animating powers. Insentient of its still-governing force. And - thankfully - oblivious even to her need to attempt to hide her true scorn and indifference to our founding unalienable rights.

It is a dead certainty that, if she is admitted to the high court, the day will come when she will cast aside - carelessly, indifferently and without pause, but with a leering smile and chuckle on her lips - our sacred birthrights as so much nuisance and interference with the government’s right to direct our lives as it - or she - sees fit.

She must be barred from the court.

Forty-one filibustering senators can save the Republic this week. Or all 99 will surely be condemned by history for their failure to act when they had the legal power to do so.

The senators have had their warning: Side with Abraham Lincoln and the republic or with Elena Kagan. Which will it be?

Tony Blankley is the author of “American Grit: What It Will Take to Survive and Win in the 21st Century” (Regnery, 2009) and vice president of the Edelman public relations firm in Washington.

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