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Elena Kagan: Could she defend the Constitution's purpose?

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The Holmes model: sneering at natural rights

Instead, they follow the path marked out by Justice Oliver Wendell Holmes, Jr., who sat on the Supreme Court from 1902 to 1932. “All my life I have sneered at the natural rights of man,” Holmes wrote, reflecting his view that the individual rights venerated by the Founders have no objective validity and therefore no role in discerning the Constitution’s meaning.

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.

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