Judges may harbor personal opinions on man’s rights, Holmes conceded, but such notions have “nothing to do with the right of a majority to embody their opinions in law.” Holmes’s view directly contradicts that of James Madison, the Father of the Constitution, who reviled unlimited democracy as “incompatible with personal security or the rights of property.”
Kagan, during her recent hearings, declared her allegiance to the Holmesian orthodoxy. Under questioning from Sen. Tom Coburn (R) of Oklahoma, Kagan said a judge’s understanding of inalienable rights is “outside the Constitution and the laws,” and therefore “you should not want me to act in any way on the basis of such a belief.”
In a written follow-up, Kagan named Holmes as the last century’s most influential Supreme Court justice, stating: “His opinions ... set forth the basic rationale for judicial deference to legislative policy decisions.” Having discarded the Constitution’s actual purpose as irrelevant to judging, Kagan is left with Holmes’s concept of the Constitution as a mechanism for implementing unlimited majority rule.
How might a different judge proceed – one who regards it as her duty to interpret each clause in relation to the individual rights to life, liberty, property, and the pursuit of happiness?
Suppose she were asked to interpret the oft-disputed provision that grants Congress authority to “regulate Commerce ... among the several States.” Such a judge would recognize that the Commerce Clause empowered Congress to protect the rights of traders, by preventing states from imposing tariffs and other restrictions on the free movement of goods across state lines.
Such a judge, applying the Commerce Clause to current cases, would ask whether any proposed government action itself violates an individual’s rights. And such a judge would stand ready to strike down laws that exceed the government’s granted authority.