Am I the only one who thinks that it’s obvious what Coburn is really asking here?
She as much as said that she will find ObamaCare and the individual mandate constitutional. And, of course, that there are no effective constitutional limits on the power of the federal government.
[Update early afternoon]
Did she just buy herself a filibuster?
“I wouldn’t rule out a filibuster,” [Coburn] said. “Look, my two main concerns are …: We’re in trouble as a nation, and one of the reasons we’re in trouble is the expansion of the federal government into areas that our Founders never thought we should be in. And we have a nominee to the Supreme Court that is fully embracing that and with no limits in terms of the Commerce Clause. So to me, that’s very concerning. The second point I would make, again, is that she believes precedent trumps original intent. And she defended that. And so that — both those things are very concerning — should be very concerning to the American people.”
Jeff Sessions isn’t impressed with her, either:
“She does not have the rigor or clarity of mind that you look for in a justice on the Supreme Court,” Sessions says. “She is personable, people-oriented, and conciliatory, yet she lacks a strict, legal approach. You want a mind on the court. She’s charming, delightful, and personable, but I don’t see that there.”
Sessions is not convinced. “I have become more troubled after today,” he says. “On really tough matters, she becomes very political and acts less in a principled, lawful manner and more in a manipulative, political manner. That’s not what you need on the Supreme Court.”
Unfortunately, it’s what we’re likely to get with this administration.
“She as much as said . . . that there are no effective constitutional limits on the power of the federal government.”
Well, at least she’s honest.
Now if Kagan would take off that silly wig and reveal herself as “King of Queens” Kevin James in disguise, we’d really have full disclosure.
I’m sure we’ll find more, but this alone should disqualify her, or at least stiffen the backbone for a filibuster. Anybody taking bets? Most seem to think she will sail thru fine.
I’m quite alarmed but as above thankful she’s so honest in this case.
What is newsworthy is that Elena Kagan is that since Senator Coburn’s “law to require each person to eat 3 vegetables and 3 fruits each day” is a thinly veiled proxy for Health Care Reform, Elena Kagan just called it “not un-Constitutional, but a stupid law.”
You know, I don’t know a thing stupid about the Coburn 3-Veg 3-Fruit Act. I am not being sarcastic here. If we are to tame the health cost monster and the Obesity Epidemic, some serious modification of the American pattern of eating is required. But Elena Kagan just called a law to impose an individual mandate on healthful eating “stupid.” Never mind the best scientific evidence is that it would help everyone out and it will also help our vegetable and fruit farmers. Oh Jim! Oh Chris! Please answer this contradiction for me.
Did you hear that, Dean Kagan just called Health Care Reform “a stupid law.” Oh Chris! Oh Jim! The (one time) Dean of Harvard Law School just called Health Care Reform “stupid.”
She’s got it backwards. Such a law would not be stupid, because it’s a good idea to eat veggies and fruit everyday (along with some dead animal I might add) so a law requiring people to do so wouldn’t be “stupid”.
It would however be tyrannical, over reaching, overbearing and above all: UNCONSTITUTIONAL.
She’s an idiot. And unless she’s found to have a bloody axe in the trunk of her car and a human head in her freezer she will be the next SCOTUS Justice simply because every idiot democrat and several idiot RINOs will vote to confirm her regardless of what else might come out in this pointless dog and pony show hearings.
“Release the Kagan!”
If this were Bork they’d be putting a head in the freezer and the axe in the trunk of his car. If Senators can’t keep her off the supreme court this country is so far into the abyss that the light at the end of the tunnel is probably the fires of hell (a popular conception having no basis in reality but useful for it’s allusion.)
Well, Judge Bork had that stupid “chin slinky” see-through beard. Dean Kagan as that even dumber “Moe Howard” hair style. Maybe there is hope for defeating this nomination.
the light at the end of the tunnel is probably the fires of hell
I’ve actually never heard that one before, so kudos. Alas, too true.
If we are to tame the health cost monster and the Obesity Epidemic, some serious modification of the American pattern of eating is required.
Not government’s job.
See this clip where Coburn asks Kagen about inalienable rights?
http://www.youtube.com/watch?v=-RU_6t6Anro
What strikes me as funny about this clip is that people on the left and on the right will both see it as red meat. I think Kagen’s answer was great, many of you will see it as absolutely horrible.
Well, first she seems to indicate that she doesn’t believe in natural rights (that is, rights as an emergent property of consciousness (or “God” if you must)) then later retreats and says she doesn’t rule out their existence. Then she says she’d make rulings on the basis of “law”, whatever that is.
So…what part of that was “great” to Leftist Bob-1?
I think it is great when a judge sticks to the Constitution and the laws of the United States, declines to even discuss his or her own religious views, and points out that such views must not inform a judge’s decision. And I thought treating the Declaration of Independence as having no legal status was a cherry on top. I don’t expect many here to agree with me, but I see Coburn’s reference to the Declaration of Independence as unpatriotic, while I see Kagen’s answer as revealing a respect for the American way.
(Not to imply that Kagen is already a judge or SC justice, just that she would be a good one.)
No, Bob, sorry.
She doesn’t believe in the Constitution (at least not the one the Founders wrote). She seems to think that the federal government has unlimited power over the citizenry. As another commenter said, the problem with Coburn’s thought-experimental law isn’t that it’s “stupid” (as she characterized it) but that it is unconstitutional tyranny, and she doesn’t even recognize it.
She may be a very nice person, but that’s why Jonah put a smiley face on his book cover.
Thinking about the upcoming 4th of July commemoration, I’ll just share one more thought, even though it is a rather, unresponsive to your comment Rand: I think it is interesting to wonder whether the Constitution could be further enhanced by incorporating more of the 2nd paragraph of the Declaration into the Constitution. Incorporating the entire 2nd paragraph would be quite radical…. …too radical for me.
The Declaration was written by one of history’s most gloriously impractical thinkers while the Constitution was written by one of it’s most pedestrianly practical thinkers. It’s amazing that the tension between them continues to this day.
The bad news here is that Kagan is certainly qualified to sit on the Court, in the sense of being smart and knowing Constitutional law. She doesn’t have as much experience as other potential nominees, nor is she out and out brilliant like Roberts — but the Constitution and history doesn’t require her to be outstanding, merely qualified, and she is. Beyond that, tradition accords tremendous deference to the President’s wishes, and it’s hard to doubt that Kagan represents Obama’s wishes. Even if she were defeated, whcih I think very unlikely, there would just be another just like her, only perhaps a little sneakier.
I’ll settle for a nice person without too many delusions of grandeur and a competent ability in the law. No, she is very much not my cup of tea, and I’m no less dismayed at her view of the powers of government, but this is the result of electing Barack Obama. It was written in November 2008 already, and there’s very little use crying about spilt milk right now. Indeed, to hamstring Obama’s nominees by some kind of novel trick or by fomenting undue angst at the consequences of Kagan’s tenure would only poison the well for President Palin’s future picks. This is how it goes. This is why you don’t elect a President on some kind of Hope ‘n’ Change flyer and figure stuff will work out OK, but if not, no harm done because you can fail to re-elect him in four years. How much harm can a President do in four years? This much.
Indeed, to hamstring Obama’s nominees by some kind of novel trick or by fomenting undue angst at the consequences of Kagan’s tenure would only poison the well for President Palin’s future picks.
Sorry Carl but I find this to be a little like the “don’t be too tough on the islamonazis or you’ll make them hate us” argument. Democrats have rarely demonstrated any reservations about ripping a GOP SCOTUS nominee to shreds. Remember Bork? Thomas?
But sadly, you’re right. She may as well go ahead get herself a black robe.
“I think it is interesting to wonder whether the Constitution could be further enhanced by incorporating more of the 2nd paragraph of the Declaration into the Constitution. Incorporating the entire 2nd paragraph would be quite radical…. …too radical for me.”
Well, yeah, you wouldn’t want the peasantry getting the idea they have the right to resist tyranny.
You must be talking about some other clip since she wasn’t asked about her religious views nor did she “point out” any such thing in that one. You only posted the one about the 2nd Amendment where Kagan says she’d make decisions based on “the law” and “the Constitution.” Nothing extraordinary about that.
“The Declaration was written by one of history’s most gloriously impractical thinkers . . . ” Why? I live by its ideals daily. I respect other people’s lives, liberty and property (or “pursuit of happiness”) all the time, and have no trouble with it. People who tell me the ideals of the Declaration are “impractical” must at some level be wanting to force me to do something or legally steal something from me. Since I have no such impulses, I can live by the idals of the Declaration very easily.
” . . .while the Constitution was written by one of it’s most pedestrianly practical thinkers.” Maybe. Or maybe not:
http://www.lewrockwell.com/nock/nock17.1.html
As Hank Rearden says when someone accuses him of being “impractical,” it depends on what one wants to practice.
^^^ What Bilwick1 just said.
(Kagan’s testimony makes me think of a hypothetical job interview for an engineer: when asked how he will design components, he replies that he will “build them to specification.” When asked again what kind of objective criteria he will use, he again says that he will “build them to specification.” After being confirmed, I mean, hired, he of course proceeds to build them with absurd Rube Goldberg designs…)
Titus, “”We hold these Truths to be self-evident, 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.”
That’s a religious assertion. Take out the “endowed by their Creator” clause, and it is still a religious assertion. Truths are only “self-evident” in a faith-based context.
The entire idea of natural or inalienable rights is a religious assertion. I might subscribe to that religion, Kagen might subscribe to that religion, we all might subscribe to that religion, but it doesn’t matter — the Constitution is what is relevant for Kagen’s job interview — in particular, the 2nd amendment and 14th amendment. Wikipedia isn’t the greatest source for further information, but it is convenient to cite, so see http://en.wikipedia.org/wiki/Natural_and_legal_rights and in particular, see this link:
http://en.wikipedia.org/wiki/Is-ought_problem
I thought you were talking about the second paragraph, Bob-1. And if I, a non-believer, can quote the Bible, take the beam out of your own eye before criticizing the Founders’ “religosity.” Statism is the biggest “faith-based” pile of dogma and superstition since–I don’t know what . . . Islam? At least a religion that adheres to a natural-rights philosophy will, in Jefferson’s words, “neither pick my pocket nor break my legs.” The Cult of the State (the official religion of Obamunism) does the first constantly and will do the second if you won’t let it do the first.
I was talking about the 2nd paragraph, as was Coburn.
See http://www.ushistory.org/declaration/document/
Hey, all you libertarians were recently mocked — but you might enjoy it,
See this cartoon:
“The 24 Types of Libertarian”
http://img.photobucket.com/albums/v620/theweaselking/main5/7b36334f.png
Rights are an emergent property of personhood. They exist independent of any deity.
You’re merely stating your faith. I agree that dieties have nothing to do with it – not all religions involve dieties (as Bilwick will heartily attest to!)
As an aside, the notion of “emergent properties” is troublesome to philosophers too. Here fill in this sentence: A hurricane is an emergent property of [X]. It is hard to figure out what X really is.
To expound further, natural rights are what are inherent to you as a person. Privileges (aka “conventional rights”) are what are granted to you by society. To gain the latter, you must forgo some of the former. The easiest example is the conventional right to a trial by jury. That right comes at the cost of taxation and, possibly, the requirement to serve on a jury if called. The two should not be conflated.
So my question to the Leftist is this: if conventional rights are not created from natural ones, how are they created? Where do they come from? If they come from the authority of “society” or the collective, how does it get those rights? See, all philosophies must address this issue — even John Rawls (you can wiki him, I’m sure..) takes a purely secular/social approach, but, if you wrestle his arguments to the ground sufficiently, you’ll see they’re materially equivalent to my first paragraph.
Faith in what? An objective universe? Okay. What is your concept of law based on? How is that not “faith?”
And by “faith” I mean “religion”. (In case you were trying to move the goalposts..)
To not get too far away from the topic, the point is this: when resolving conflicts between the letter of the law and the spirit of the law, what do you use? Just saying, “I will use the law” does not work. Godel proved that one.
Titus, If the following answer isn’t deep enough, I apologize, and maybe you can let me know what I ought to be thinking about, but it seems to me the answer is simple.
There are atoms, the atoms assemble in various ways, when the atoms assemble such that you get intelligence, self-awareness, and various other traits that we collectively call “personality”, you get a “person”. You can take a person into a room and test for intelligence — it really does exist, as it is inherent in a person, just as a person’s weight is inherent in a person. (Under this usage, a corpse isn’t a person anymore, and we’ll leave cryonics out of it for now). You can’t take a person into a room and test for “rights” — they aren’t inherent in a person, because, in my view, they don’t exist as a natural object.
Rights are established by societies, they govern how members of a society may treat each other, and ultimately, as has been pointed out on this blog many times, they are derived from force. Fortunately, we live in a just society where our rights are protected by force. (In our society, there is an intermediate layer betwen rights and force called “consent of the governed, of course.)
Titus, regarding your question about letter of the law versus spirit of the law: a good question, and maybe Coburn was trying to ask this question, but he failed to ask it, and instead he asked about Kagen’s faith. Kagen appropriately demurred. If Coburn had asked your question, Kagen should have discussed the topic of so-called “activist judges” and constitutional literalism and the role of precendent, and other related subejcts.
I haven’t been able to follow the proceedings — have any of Kagen’s questioners figured out how to address these issues?
About faith: I think rights are just like the rules in football – they are arbitrary and decided on by groups of people. You appear to me to have the faith-based belief that rights are a natural part of a human being in the same way that a liver is a natural part of a human being. I say “faith-based” because there is no evidence for “natural rights”.
No problem, that’s an easy one — you’re confusing empirical with objective. It’s the difference between physical objects and mathematic models which describe them. You can measure physical objects, but you cannot measure mathematics (math is what you’re “measuring” with!). But math, like ethics, allows you to make categorical statements, thus it is objective nonetheless. You can have physics models that are wrong; you can have ethical systems which are wrong, as well.
Rights are secured by societies via law, but rights are grounded in ethics. You can sit down and draft any law you want irrespective of rights and implement the bloody consequences, but that does not make your law ethical.
You use the word “ethical” as if it means something real, something that you can test for. You say “rights are grounded in ethics”, but I think ethics are grounded in faith-based beliefs. How could they not be?
I just realized I hadn’t properly digested your first paragrph (the phone rang!) when I posted. Duty calls, but I’ll try to offer a better reply after I can thnk about your point regarding objective vs empirical.
Bob-1: The paragraphing in the online version of the Declaration that was my reference may be different from that of the original document, or other versions.
Re the cartoon, they seem more like straw-men to me. Not like many of the libertarians I know. I’m more of a Leonard Read type (not depicted in the cartoon, but kind of Gandhian without the strict pacifism) , with elements of “Arrogant” (due to increasing frustation with the increasing dopeyness and semi-literacy of the Left) and “Gunner Joe” in the cartoon (minus some of the testosterone).
I don’t think you could do a simlar cartoon about “liberal” State-fellators. Except for a few dinosaur Proudhonians or Bakuninites, libertarians are individualists, where “liberals”–well, not so much. (Those of us in the pro-freedom camp don’t call our opponents “the Hive” for nothing.) In the comments section of the blog “And That’s Why You’re Still Single” dealing with the problems of dating people who don’t share your political views (a particular problem for libertarian men, since women are “The Socialst Sex**”), a commenter named Joe came up with three basic types of “liberals,” and I’ve never seen the State-fellators more cogently and succinctly categorized***:
(1) The “I Want A Mommy ” type–pretty much describes itself; essentially scared of freedom.
(2) The “I Want to Be a Mommy” type (“where for ‘Mommy,’ read “Dictator making everyone do what I want them to do”)
(3) The “I am Consumed by Envy” type . . . “easily spotted by their constant use of the word ‘fair’ in the sense of ‘completely unfair proportion of reward to ability.”
Being an artsy type and travelling in artsy type circles, I am most often in contact with Type 3, although the envy factor, coupled with a sense of powerlessness, often drives them to become Type 2. Of course people–even Hive members–are rarely all one type or another, but it might be fun to figure out what predominant type Chris Gerrib, Jim and Bob-1 are. I see Gerrib as mostly Type 1 with elements of Type 2. Anyone else want to give it a shot?
*”The Bad Shepherd,” to go back to the Bible.
**Go on–prove me wrong
***Source: http://moxieblog.typepad.com/moxieblog/2010/02/political-leanings.html
Correction to the above: the first asterisked footnote refers to a remark I made but deleted before sending, without realizing I needed to delete the corresponding footnote as well.
You’re getting closer — they are arbitrated, yes, in that they are traded. They are not created in the process of being traded — they belonged to the players before starting the game. You give up your right to run offside before the ball is snapped (along with many othe rights) to say in the game, for example. It’s as if you’re looking at a contract and concluding that no right to enter the contract existed prior to the contract itself — well, if you had no right to contract, the contract wouldn’t be valid. Natural rights are axiomatic and based on man’s relationship with the natural world. Not all axioms are religious — and it’s certainly no more religious than the axiom you’re offering: that rights exist only when they’re negotiated.
I think Titus nailed it. Whether or not you believe in God, the point of the inalienable rights phrasing is to emphasize that those particular rights belong to the individual and are not something our government can give or take away. Sure, you can forfeit those rights by self-destructive or criminal behavior, but the government has not been given the power to simply take them from you.
It’s interesting that people who don’t believe the individual has any inherent rights, believe that the State has the right to do almost everything. Apparently Joe Blow has no rights (other than whatever his beneficent overlords may grant him), but if Joe gangs up with a bunch of other Joe Blows, and the rest of society agrees to call the Joe Blow gang “the State,” suddenly Joe and his fellow Joe Blows now have magically acquired the right do all sorts of things Joe would never have claimed the right to do as a private citizen: take people’s property without their consent, force people to run their businesses whatever way the Joes deem best, etc. .
I believe that science must be empirical, and I believe the natural world is best understood scientifically. Titus, when you say “Natural rights are axiomatic and based on man’s relationship with the natural world”, it sounds like you are making a scientific statement and I wanted to correct you and say “no, you just have faith that this is true, but you have no evidence”. But you’re not making a scientific claim, right? You’re just making an ethical claim that happens to be about nature, and your claim is no different than someone saying “spotted owls are more important than people”, right?
(If I don’t answer immediately, it just means I’m busy for the rest of the day, but I’m interested in this conversation, and I do promise to return and contribute as best as I can. That goes for you too, Bilwick1. Thanks.)
Yes, Bilwick1 has it exactly. I’ll just add this for the ethical nihilists: without ethics, there is no reason to adhere to whatever law you and your gang cobble together. Every argument you can make for following the Constitution or the rules of football or whatever is an ethical one. “Should I follow the law?” is an ethical question.
Bob-1, if an ehtical system based on natural rights and your axiom that “spotted owls are more important than people” resulted in identical (or even similar!) ehtical systems, I’d agree that they are “no different.” I suspect that’s not the case.
What are natural rights? At the beginning of this conversation at least, I thought they were in the same category as souls — things inherent to people that were believed without evidence to be real.
If rights are determined by a society how then can any society be unjust? E.g. prior to the emancipation movement, society determined that ownership of slaves was not unjust and therefore violated no one’s rights.
How many members must a society consist of before it acquires rights to assign?
From where does society acquire the rights which it assigns?
If rights are arbitrary, society can remove them at some future point, and if society is the source there is no right is secure from future review and possible rescinding.
Related to Kagan and her future role in a Supreme Court with more “flexible” and “broad-minded” approach to the Constitution:
http://hotair.com/archives/2010/07/01/how-did-four-supreme-court-justices-wind-up-arguing-against-the-constitution/
You believe in free will, right?* It’s basically your right to exercise that thing.
(*Yes, it’s a trick question because even free-will deniers must still act as if they do — that’s how human brains work…)
I don’t belive in free will. Bertrand Russell covered the human condition: “We do as we please, but we don’t please as we please.”