The bitter battles now routine for every U.S. Supreme Court nomination go beyond the issue of the qualifications or political views of the specific nominee. They expose a more fundamental problem with the federal government: the legislative and executive branches simply refuse to take the Constitution seriously.
“Once upon a time, Congress felt it had a duty to legislate in accordance with the Constitution. Likewise, past presidents believed that they should veto laws that were not clearly constitutional,” said Wes Benedict, Libertarian Party executive director.
“But in more recent years, both branches have thrown this crucial duty away,” he said. “Now their attitude seems to be, ‘We can pass anything we want to, and let the Supreme Court deal with it if they don’t like it.’ That was absolutely not what the American Founders had in mind.”
Benedict said Kagan is a bad pick for the court because she’ll probably vote to advance liberal policy goals, just as other justices vote to advance conservative policy goals.
“That is the problem,” said Benedict. “That is not the place of justices, who should be applying the Constitution, not trying to rewrite it to make society work better according to their views.”
“She will not be bound by the Constitution, but that is why Obama nominated her,” said Mike Beitler,
Libertarian candidate for U.S. Senate. “Her nomination is no surprise.”
Beitler said that he was also concerned that Kagan has no experience as a judge.
“The Supreme Court has become a very different creature in the past 150 years,” said Dr. Mike Munger, Duke University political science department chair. “To my mind, the last great justice of the Constitution was Justice (Stephen) Field.”
Munger said Field’s idea of fundamental rights to property and to the “pursuit of happiness clause” in the Declaration of Independence, articulated in his dissent in the Slaugherhouse Cases (1872, 83 U.S. 36), are very important.
Field wrote that the Declaration of Independence “lays the foundation of our national existence upon this broad proposition: ‘That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness’ ”
“These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all,” Field wrote.
“The pursuit of happiness is individual: an individual chooses a path, and has the right contract and work to secure the fruits of that work, without outside interference,” Munger said. “Any justice President Obama is likely to choose will long ago have abandoned that fundamental truth articulated by Stephen Field.”
“We could do worse than Ms. Kagan, I suppose,” said Munger. “And I expect we will, unless we reconceive the role of the court, and the role of the individual in a free society.”
Who is appointed to the Supreme Court should not matter, Libertarians say, because the justices should no have the power to make American society lurch from one direction to another. Nor do Republicans have the right to “throw stones” at Kagan, because they supported the Bush Administration’s blatantly unconstitutional Patriot Act and his blatantly unconstitutional Medicare program.
“When they were in power, they showed absolutely no respect for the Constitution,” Benedict said.
“I wish that President Obama had picked a nominee with more regard for the original intent of the Constitution,” he said. “But even more than that, I wish that he and the members of Congress would stop shirking their responsibility to apply the Constitution themselves.”