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15 questions for Elena Kagan

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For instance, state challenges to federal health care reform legislation argue that Congress lacks Commerce Clause power to mandate that individuals purchase health insurance.

4. Do you have a theory of constitutional interpretation? Explain the ideas of a “living constitution” and “original intent” and whether you agree with the notions. Does original intent only apply to the 1787 Constitution’s body or to subsequent amendments, especially the Fourteenth Amendment and its Due Process and Equal Protection Clauses?

5. What pertinence, if any, should international law sources have for constitutional interpretation?

Some justices invoke international law, such as the Geneva Conventions, when they decide questions, namely whether “evolving standards of decency” prevent capital punishment for mentally incompetent people because that is cruel and unusual punishment under the Eighth Amendment.

6. Do you have a theory of statutory interpretation? For example, Justice Antonin Scalia discerns legislative intent by relying exclusively on the statutory text, while Justice Stephen Breyer consults relevant legislative history, such as committee reports.

7. Some observers have criticized the Court’s Kelo decision for too broadly viewing the eminent domain power to take private property for a public purpose. They assert that the opinion violates private property rights. Do you have a theory of private property rights?

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