I previously posted about something Charles Johnson said that had me worrying that he thought individual rights are granted by government, rather than being unalienable. Unfortunately, a recent post of his about the Kagan hearings exacerbates that concern.
Let’s watch the subject of his post first, shall we, before looking at Johnson’s comments.
The video starts with a question by Sen. Grassley where he asks, “do you believe the 2nd Amendment codified a pre-existing right, or was it a right created by the constitution?” This is an excellent question to ask a nominee to the Supreme Court to see what they think about natural rights versus legal positivism. Does Kagan think we have unalienable natural rights, or do we have them at the discretion of the Constitution and the majority? Is the Declaration of Independence the founding document of the country that the Constitution relies on for moral support, or, being the law of the land, does the Constitution render the Declaration irrelevant?
What does Johnson have to say?
Sen. Grassley: God Wanted Us to Pack Heat
My goodness. Goodness gracious. Goodness me.
Watch as GOP Sen. Chuck Grassley hopelessly confuses the Declaration of Independence with the US Constitution, and declares that the right to bear arms comes directly from God.
In his haste to disparage the right for it’s history with the religious right, Charles really misses the mark with this one. The point of the line of questioning eludes him and he ends up looking like the one who is confused.
Senator Grassley never confuses the Declaration with the Constitution at all in the video. He may not quote the Declaration very well (it’s “unalienable rights” not “individual rights”), but there is no mix up. In fact, Grassley takes the time to distinguish between the two.
“I know the Declaration of Independence is not the law of the land, but it does express the philosophy of why we went to war [with the British] and why our country exists.”
Also, Grassely doesn’t say that the right to bear arms comes directly from God, nor is that the point of his questioning. Given the language of his first question, a direct quote from the Declaration is entirely appropriate to back it up, and it is clearly used to see what Kagan’s views on natural rights are. Does quoting from the deistic words of our Founding Fathers in the Declaration Independence, with its intentionally nebulous “Nature’s God / Creator,” make you a theocrat these days?
Grassley could have worded his question differently, as the natural right we have is to self-preservation in general, not to arms specifically. A better question would have been “do you believe we have a natural right to self-defense, or is it a legal right granted by the Constitution, and how does the 2nd Amendment relate?” The correct answer is yes, we do have a natural, pre-existing, and unalienable right to self-defense and the 2nd Amendment restricts our government from banning the common weapons we use to protect ourselves from others that wish to infringe upon our rights.
So what are Kagan’s views on natural rights? Tony Blankley has the answer at RealClearPolitics with a telling contrast of Abraham Lincoln’s thoughts on the matter.
Abraham Lincoln: “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.”
Kagan: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and the laws of the United States.
Actually, to be picky, the enforcement of the Constitution and the laws is the job of the Executive Branch. Your job as a justice, Ms. Kagan, would be to determine if the laws of the land and the actions of its people are constitutional, based on your interpretation of the Constitution. And what better way to inform your interpretation of the Constitution than by studying it along side of the ideas and philosophy that made it possible and necessary?
Let’s go back to Blankley’s article for more on that philosophy (read the whole thing).
Apparently unbeknownst to Ms. Kagan [and to Mr. Johnson], from the very beginning, it was the inalienable rights of the people that made the people sovereign and thus permitted the people to form the Constitution and continue to guide its application.
The very reason for the American experiment was — and is — to establish the principle and the reality that no man or government may alienate a person’s life, liberty or pursuit of happiness… [These unalienable rights] are the animating purposes of all our laws — of the law. They are the soul of our Constitution. Without those rights, the body of law is a corpse — a soulless, purposeless, manipulable, disposable, dead, material thing. If Ms. Kagan does not know that, then she knows nothing of our law. [Emphasis added.]
… [All government powers] subordinate to the undergirding sovereignty of the people.
THIS!