EDITORIAL: Kagan: for fruits but not for liberty

Supreme Court nominee won’t limit government’s power

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Liberty as Americans always have understood it appears an alien concept to Supreme Court nominee Elena Kagan. Last week’s Senate Judiciary Committee hearings made clear that Solicitor General Kagan views the federal government’s power as almost unlimited.

With an eye on the mandates contained in Obamacare, Sen. Tom Coburn, Oklahoma Republican, asked Ms. Kagan if a Congress that purportedly has the power to force people to buy health insurance could also tell Americans they must buy and eat “three vegetables and three fruits every day.” Ms. Kagan’s misleading response: “I think that the question of whether it’s a dumb law is different from the question of whether it’s constitutional, and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.” Pressed by the senator, Ms. Kagan said the Commerce Clause of the Constitution limits Congress only if a law cannot be shown to have any effect - any at all - on economic activity.

In short: Yes, Congress has the constitutional right to make you eat your fruits and veggies. Forget freedom; if the government chooses to be coercive, the government can coerce.

Ms. Kagan hemmed and hawed about whether the Constitution should be interpreted in the context of natural rights as described in the Declaration of Independence. Mr. Coburn asserted “that we have certain God-given, inalienable rights that aren’t given in the Constitution, that they’re ours, ours alone, and that the government doesn’t give those to us.” The best Ms. Kagan could do in reply was to provide a jumbled double-negative: “I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but …”

Indeed, Ms. Kagan’s record indicates that she doubts the Constitution serves preexisting rights. She has spoken of government “redistribut[ing] expression” and of “dol[ing] out” speech rights “as favors.” On economics, she wrote, “corporate wealth derives from privileges bestowed on corporations by the government. … Individual wealth also derives from government action.”

Ms. Kagan seems to think the federal government is responsible for just about anything and has the power to dictate just about everything in the realm of speech or economics. It’s not a set of beliefs fit for a Supreme Court justice.

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