The Would-Be Judge Who Would Not Read

Elena Kagan rejects the concept of a Constitution.

Solicitor General Elena Kagan is spending this week under the Klieg lights of Senate hearings concerning her appointment to the Supreme Court.  Thus far, like most modern Supreme nominees, she has artfully avoided saying anything at all while the Senators artfully avoid admitting that they know she's saying nothing at all.  It is a Kabuki dance - as the Bard might say, "Sound and fury signifying nothing," minus the fury.

This shouldn't really matter.  As we've previously written, Kagan's past actions as Harvard dean should irrevocably ban her from any judicial authority whatsoever, because she utterly rejects the concept of a strong national defense which is one of the precious few things the Constitution actually gives our Federal government the obligation and the authority to do.  That Kagan even made it this far in the process is a stunning indictment of the utter moral bankruptcy and complete disdain for the Constitution of this administration, its supporters in Congress, and sad to say, not a few Republican squishes.

We would have thought the situation bad enough already.  To our shock and horror, however, this week revealed statements from Kagan that express such stunning un-Americanism that, if Mr. Obama was aware of them (and it's hard to see how he could have not been), that her very appointment should in and of itself qualify as an impeachable offense.

What could possibly be that bad?  How about someone who flatly does not believe in the First Amendment - at all?

Of The Bureaucrats, By The Bureaucrats, For The Bureaucrats

Recollect the recent Citizens United Supreme Court case in which the Court struck down campaign-finance laws that prevented corporations from publicly expressing their political views.

The particular issue in the case revolved around a made-for-TV movie excoriating Hillary Clinton.  However, when the justices met to consider the case, they discovered to their astonishment that the laws as written would ban anything at all - from movies, to books, to pamphlets - based entirely on who was paying for it and the fact that it was in opposition to a political candidate.

As any schoolchild knows, this prohibition of political speech flies in the face of centuries of American tradition and English tradition for centuries more beyond that.  If there's one thing that the First Amendment is supposed to protect absolutely, it's political speech.

Yet Solicitor General Kagan defended the law.  OK, that's the job of the Solicitor General; by definition of the position, she's supposed to defend the validity of the law no matter how stupid it is.  But there's a defense, and then there's a revelation.

When asked by Justice Scalia if the law didn't seem to be just a bit overbroad, considering how much speech it attempted to ban, here's Kagan's response:

GENERAL KAGAN: I don't think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book. To say that it doesn't apply to books is to takeoff, you know, essentially nothing.

CHIEF JUSTICE ROBERTS: But we don't put our -- we don't put our First Amendment rights in the hands of FEC bureaucrats!

You can listen to her make this astounding statement if the printed words don't suffice to make the point.  What she is saying should frighten all Americans right down to their boots: Would-be Supreme Court Justice Elena Kagan believes that it's perfectly fine to make laws that completely negate the First (or any other) Amendment and all of its protected rights, because bureaucrats are good people who won't actually enforce them that way.

For This, We Fought A Revolution?

Think of the regret on the part of the Founding Fathers, who mostly lost their wealth and many their families in the horrors of war!  There was no need for them to demand a written Constitution protecting rights!

After all, bureaucrats are kind and trustworthy wielders of absolute power; nobody need be concerned that any government official might infringe on everybody's rights.  No need for courts!  No need for appeals!  No need for any written rights at all; the bureaucrats just instinctively know what they are!

There's an simpler way to sum up her beliefs, and it's found in two articles of the Constitution of the USSR:

Article 50... Citizens of the USSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.

Sounds great, right?  But if there's one thing the unfortunate inmates of Communist Russia did not have, it was freedom of speech and of the press.  How can this be?

Article 59. Citizens' exercise of their rights and freedoms is inseparable from the performance of their duties and obligations.

Citizens of the USSR are obliged to observe the Constitution of the USSR and Soviet laws, comply with the standards of socialist conduct, and uphold the honour and dignity of Soviet citizenship.

In other words, notwithstanding the "rights" that are supposedly listed in the Constitution, Soviet citizens were unconditionally obliged to obey Soviet laws - which totally negated those selfsame rights.  And that's exactly how the system worked as we all know.

The Constitution of the USSR did not limit the Soviet government and wasn't intended to; it was, instead, always designed and intended to restrict the citizens.  Their so-called rights were protected not a whit; nothing stopped the Soviet government from making any law it pleased and trashing their citizens in any manner that seemed convenient to the powers that be.

Our Constitution, in starkest of contrast, was designed from Day One to be an absolute limit of binding chains upon the government.  In saying that there are no limits on government power, however, that's exactly the principle which Elena Kagan explicitly rejects.

We would like to think of ourselves as being fairly widely read and well-educated, but we have certainly not been Dean of Harvard University!  How is it, then, that we are familiar with both the Soviet Constitution and the gross abuses of human rights that it enabled, and she is not?  Considering that the Cold War was under way for half of Kagan's adult life, how can she know nothing whatsoever about it?  Does the lady not know how to read?

It's not just the history of the Soviet empire, it's most of human history.  Every sentence and every line in all of human history makes one thing perfectly clear: Power corrupts.

Give government, bureaucrats, union officials, warlords, or anybody else total power, and they will not only use it but abuse it.  The only hope for a free people is to strictly limit the government, not to place all our hopes and dreams in its hands!

Our Founders knew this full well and said so constantly; how is it that Kagan seemingly has never heard of the concept, preferring instead to live in a fairly-tale land of saintly bureaucrats that never has existed and never can?  Fifteen seconds' worth of Googling produced this statement from James Madison in Federalist 51, revealing more wisdom than everything Kagan has ever said or written:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions[emphasis added]

Far from supporting these "auxiliary precautions," namely the Constitution itself, a Justice Kagan would see no need for any check on government whatsoever save the conscience of individual bureaucrats.

Kagan clearly has no interest in or knowledge of the facts of political history either foreign or domestic.  She will not read.

What is worse, she wants the government to prevent you from reading things of which she does not approve, or more specifically, which attack her own political allies.

By appointing an out-and-out anti-Constitutionalist to the Supreme Court, Barack Obama has made a mockery of his oath to "preserve, protect, and defend the Constitution."  There are many things he has done for which he should be held accountable at the ballot-box alone.  For expressly and wantonly violating his oath of office, though, impeachment seems the appropriate penalty.

We won't hold our breath.  If Kagan makes it onto the highest bench, this nation will without question move one step closer to civil war.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Bureaucracy.
Reader Comments
A side article to this one might be about the issue of impeachable offenses. Is it possible for Obama to be impeached for appointing someone that may break the law? Impeachment isn't some grab-bag mechanism for the Senate to beat the President with whenever they dislike what he does. It specifically involves illicit actions. The President has to commit a crime in order to be impeached. Clinton's crime was perjury, for instance. Obama's nomination of a candidate, however misguided, is not a crime itself.
July 1, 2010 9:09 AM
No, but it's a direct violation of his oath of office. So the real question is, is violating your oath of office impeachable even if it's not a crime?
July 1, 2010 9:56 AM
"the President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

That's from the US Constitution in Article I, Sections 2 and 3, which discuss the procedure, and in Article II, Section 4, which indicates the grounds for impeachment.

So the answer is no. It only involves crimes.

No matter how distasteful Obama's socialists policies and appointments are, they are not crimes. Therefore, no impeachment.

I think the founders knew what they were doing here. You don't want lynch mob Congresses impeaching Presidents they don't like for any reason.
July 1, 2010 10:05 AM
One might suggest that violating the oath is a crime in itself because the oath is a sworn testament. Violating an oath is perjury, right?

But then who decides if it's an actual violation of the oath?

You're setting up a serious interpretation problem. A President's opponents will always say that he's violating his oath because they dislike his policies.
July 1, 2010 10:10 AM
And of course impeachment is not only for crimes. It's also for misdemeanors. I don't think the Founders meant that in the literal judicial sense that a parking ticket is a misdemeanor - obviously Presidents shouldn't be impeached for those, assuming they ever got one.

From the layman's point of view, a direct blatant violation of your oath of office would be a high misdemeanor.

In reality, of course, impeachment is purely political; an official can be impeached for whatever 2/3 of Congress considers to be impeachment-worthy at any given time.

Personally I believe America has been far, far too reluctant to use the impeachment process; there are dozens if not hundreds of Federal judges who should have been impeached for rank lawlessness. Going after a President is a far more serious thing, of course.
July 1, 2010 10:17 AM
Well, misdemeanors ARE crimes. There are three classifications for all crime in the US: felonies, misdemeanors and petty offenses. Misdemeanors are things like speeding. Petty offenses are things like jaywalking or loitering.

I see no reason to believe that the founders did not mean exactly what they said - it has to be an illegal activity.

Whether that be a high crime or low crime, it doesn't matter. You have to break the law in some way to be impeached. Nominating someone is simply not breaking the law.

PS. I agree that we should impeach much more.
July 1, 2010 10:22 AM
I think the subject of impeachment deserves its own complete article, to explore it more fully.
July 1, 2010 12:43 PM
Seconded. And I'm tending to agree with lfon here.
July 1, 2010 5:15 PM
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