Supreme Court

Elena Kagan and Originalism

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The Cato Institute's Ilya Shapiro has a great rundown of today's confirmation hearings for Supreme Court nominee Elena Kagan. Some highlights:

In her response to Senator Kohl about whether she's an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the "original intent" of the Founders.  This line of analysis is completely wrong.  It's not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case.  So it seems that Kagan either doesn't understand originalism or doesn't take it seriously.  Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution.   I take this to mean that when originalism suits Kagan's desired result, she will pay it lip service.  Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position….

The more I watch Elena Kagan, the more I'm liking her personally and the more I'm concerned about what she'd be like on the bench.

Reason weighs in on Kagan here.

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  1. It’s not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case.

    I have a question for originalists like Ilya Shapiro. What is the “original public meaning” of the First Amendment? The Alien and Sedition Acts were passed barely over a decade after the Constitution was ratified. It was passed by the founding fathers. Even Jefferson’s primary argument against it was based more on the 10th than on the 1st. So it seems that the original public meaning of the 1st isn’t what we think of it now.

    1. Why is it difficult to believe that John Adams said fuck the first amendment?

      1. Because John Adams can’t pass legislation.

        1. So what? Isn’t it possible that both the Congress and Adams got it wrong even by the standards of the day?

          Is it your position that the President and Congress can never abuse or misinterpret the Constitution when judged by the standards of the time? If they can, the the Alien and Sedition Acts are not problematic at all. They were an unconstitutional act that ignored the prevailing standards and meaning.

  2. It’s hard for me to believe, but her testimony is even more dishonest than Sotomayor’s was.

    I do wish that the republicans had the cojones to filibuster this unqualified hag, but it goes without saying that they don’t. She will be one of the worst enemies of liberty and individual freedom to ever be seated on the bench.

    1. Balls and strikes, just balls and strikes.

  3. Kagen has never been anything more than a liberal apparatchik. She has never had an independent thought or done anything to rock the boat she was in. She will be a mindless and reliable liberal vote and nothing more.

    1. Yes, unfortunately Democrat presidents have an excellent record of selecting reliable liberals, while Republicans manage to get justices who are all over the map.

      original intent was sometimes useful for interpreting the Constitution and sometimes not

      The “not” is when original intent interferes with leftist policy goals.

      1. One analysis I read claimed that once conservative judges get a taste of the fawning press and social approval (invitations to parties, etc) they get when acting as liberals, especially inside the Beltway, they almost inevitably move left in their jurisprudence.

  4. “So it seems that Kagan either doesn’t understand originalism or doesn’t take it seriously”

    Of course she doesn’t take it seriously. It’s all part of the con job to try and get on the court. That’s the only thing she takes seriously.

    1. The con is ‘originalism.’ We’re supposed to believe that not only can conservative judges read the minds of dead founders, that they don’t believe in the concept of ‘judging’ at all, even when they are uprooting precedent, going way beyond statutory or constitutional intent, in the service of their policy preferences, which they’ve been doing with abandon all the while claiming their opinions are stamped with extra legitimacy because they claim they are originalist by nature.

      1. The con is your attempt to pass yourself off as sentient being.

        You have failed miserably – as usual.

      2. We’re supposed to believe that not only can conservative judges read the minds of dead founders

        The whole point of the entry, of course, is that “original intent” is the mind-reading strawman put up by the Left to discredit originalism. “Original public meaning” is the actual practice of originalism, involving looking at the historical record, available for anybody to see, to understand what the provision meant to the public at large at the time of its adoption.

        going way beyond statutory or constitutional intent

        Well, yes. Intent is irrelevant to originalism; originalism only cares about what was actually enacted, and what the enactment meant in the legal context of that era.

      3. Oh, how ironic to have a leftist complain about the “mind-reading” of originalists, about “uprooting precedent” and “going way beyond statutory or constitutional intent, in the service of their policy preferences”!

        No doubt Tony reads the Constitution and sees clearly that states can’t regulate abortion, that “equal protection” means “same-sex marriage,” Miranda rights, racial quotas, and dozens of other things that those mind-reading precedent-uprooters could never find.

        1. PapayaSF,

          I’m not claiming to be an originalist, I don’t have to read anyone’s minds, or be bound by the extra-legal scribblings of contemporaries of the constitution. I realize that the text of any statute, but especially that of the constitution, can be vague in application, thus necessitating one of the main roles of the court: judging.

          All jurists interpret, some like Scalia are just unabashed hypocrites about it.

  5. I loved this at the Washington Post from some Dem stooge:

    She noted that sometimes the Constitution contains specific rules (Senators must be 30 years of age) and those rules must be followed. But for other matters, she argued, the framers rejected specificity and adopted general language (searches must not be “unreasonable”) that they knew would require the exercise of judgment by later generations in light of a changing world. Because we have a more expansive view of freedom of expression than the Framers’ generation, she believes that judicial precedent is the surest guide in First Amendment cases. She defended the major civil rights in similar terms. This was a breath of fresh air in constitutional debate.

    Yeah, if your definition of breath of fresh air is “banality that would get an arched eyebrow from your 1st Year Con Law professor.” Honestly, that paragraph reads like one of those ads from North Korea praising Kim Il Sung for the genius of Juche.

  6. Thank you for not including another god damned picture of Kagan…what a terrible looking troll.*

    *Ad hominem attacks are fair game when a ‘person’ is that ugly.

    1. I heard someone say she looks like Lou Costello.

      I’d say that’s about right.

  7. I take this to mean that when originalism suits Kagan’s desired result, she will pay it lip service. Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position….

    So she will be just like Scalia then? Good to know.

    1. Because Scalia’s opinions are totally predictable. That is why he has written for things like the right to a jury trial in all cases under the 6th Amendment. I don’t have the time or the desire to go pull up all of his cases to give you the beat down you so richly deserve and similar to the one you got after you shot your mouth off about Thomas the other day. But I am sure someone will come along to do the job.

    2. And is it too much to ask that you actually defend the person or admit they are a crap weasel? Yelling “red team does it to” is fucking Edward level argument. Even if you are right, who give a fuck? That doesn’t make Kagen any better or worse. And it doesn’t make your post anything but a piece of douchey snark made in lieu of something interesting.

  8. She’s just another neckless hippo that Obama seems so fond of.

  9. We have to appoint the judge to find out what’s in it!

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