Who Are the Real ‘Judicial Activists’ Here?

by Dan Quinn

Critics of so-called “judicial activism” — examples of which are often court decisions they simply don’t like — loudly argue for a strict interpretation of the Constitution when judges interpret laws. So we find it hypocritical, to say the least, when those same critics later decide that the Constitution isn’t a sufficient basis for interpreting laws after all. Pastor Rick Scarborough, head of the Texas-based, far-right group Vision America, provided a good example of this kind of hypocrisy in an e-mail to supporters last week blasting U.S. Supreme Court nominee Elena Kagan.

Scarborough’s e-mail included the usual litany of right-wing attacks against Kagan, many of which obscenely distort the nominee’s record or what she said in her Senate committee hearings. But this one struck us as particularly revealing of the religious right’s contempt for the Constitution:

At her nomination hearings, in an exchange with Senator Tom Coburn, Kagan refused to say what natural rights she believes existed before and independent of the Constitution.

She also refused to embrace the affirmation of the Declaration of Independence that “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” Kagan claimed not to know which natural rights, if any, are affirmed by the Declaration.

By opposing natural law, Elena Kagan has disavowed the very principles on which this nation was founded, and opted instead for a theory of conditional rights based on the whims of the governing elite.

“Opposing natural law”? That’s not what Kagan said. Here are her responses to Sen. Coburn’s questions (ellipses are in place of specific questions from Coburn):

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 other laws of the United States. . . . I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws. . ..  I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws – that you should not want me to act in any way on the basis of such a belief. . . . I think you should want me to act on the basis of law, and that is what I have upheld to do if I’m fortunate enough to be concerned – to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.

As MediaMatters points out, that’s pretty much the same answer conservative Justice Clarence Thomas gave in his Supreme Court nomination hearing:

As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don’t see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis.

There are, of course, two main reasons for Scarborough’s particular line of attack here. First, it’s part of the right’s coordinated and disingenuous campaign to derail her nomination. More importantly, however, it reflects the religious right’s frustration that the Constitution is a deliberately secular document. It is deliberately secular, of course, because the Founders believed the Constitution should protect the freedom of all Americans to practice their faith (or not) as they personally see fit. But lacking a constitutional basis for using government to promote their own religious perspectives over all others, religious-righters like Scarborough and Coburn often point instead to the Declaration of Independence — which, in fact, includes the words “Laws of Nature and Nature’s God.”

The problem for the religious right is that the Declaration of Independence isn’t American law. Our laws are based, instead, on the Constitution. Of course, as Americans we believe that all people have a right to “life, liberty and the pursuit of happiness.” But the job of a Supreme Court justice, as Justice Thomas  and Elena Kagan argued, is to interpret laws based on our written Constitution. If religious-righters want justices to interpret the law based on something else, then they should stop accusing others of engaging in “judicial activism.” In short, “physician, heal thyself “(Luke 4:23).

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