Coburn and Kagan on Natural Rights

The day after he unsuccessfully pressed Supreme Court nominee Elena Kagan to define the limits of the Commerce Clause, Sen. Tom Coburn (R-Okla.) unsuccessfully pressed her to take a position on natural rights:

Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?

Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.

Coburn: I'm asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone [in] the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn't say that was a constitutional right. He said that's a natural right. And what I'm asking you is, do you agree with that?

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.

Coburn: So you wouldn't embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren't given in the Constitution that are ours, ours alone, and that a government doesn't give those to us?

Kagan: Senator Coburn, I believe that the Constitution is an extraordinary document, and I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws.

Coburn: Well, I understand that. I'm not talking about as a justice. I'm talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

Kagan: Senator Coburn, 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.

Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says.

Kagan: 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 confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.

Note that Kagan is deploying her own "pincer movement," her description of how Justice Ruth Bader Ginsburg avoided giving substantive answers at her confirmation hearings. On one hand, Kagan won't say anything that might give a "hint" of how she would vote on a case that could conceivably come before the Court. According to her, this rule (which embodies just the sort of broad self-censorship she once condemned) means she cannot express a constitutional judgment about a hypothetical federal law mandating fruit and vegetable consumption; it also means she cannot say how she would have voted in a 68-year-old Commerce Clause case. On the other hand, she won't comment on an abstract subject such as natural rights, because it is not relevant to how she would apply the Constitution. In short, she will answer any question, as long as it is neither related nor unrelated to the positions she will take as a Supreme Court justice.

But is she right to say that natural rights should play no role in constitutional interpretation? Certainly we don't want justices to read their own idiosyncratic notions of natural rights into the Constitution. Yet an originalist, even one who thinks natural rights are a convenient fiction at best, has to take into account the fact that the people who wrote and ratified the Constitution believed otherwise. That stuff in the Declaration of Independence about self-evident truths and the inalienable, God-given rights of man is more than boilerplate. It reflects a philosophical background that is relevant in deciding, for example, whether the right to armed self-defense is "fundamental" and therefore (under the Court's current standards) incorporated in the 14th Amendment—the issue in McDonald v. Chicago, this week's Second Amendment ruling.

Since it's clear Kagan is not an originalist (although it's not clear what she is), it's not surprising that natural rights strike her as a distraction from the proper work of a Supreme Court justice. When she says D.C. v. Heller "made clear that the Second Amendment conferred that right [to arms] upon individuals," she is expressing the positivist view that we have whatever rights we have by virtue of the law (including the Constitution). Although she did not directly answer the question, it's pretty clear she believes those rights are not pre-existing. When she says, "I don't have a view of what are natural rights, independent of the Constitution," her agnosticism is hard to distinguish from atheism. (I don't mean to imply that believing in natural rights requires believing in God; Ayn Rand certainly didn't think so.)

Still, it's hard to believe that Kagan really thinks there is no external standard by which to judge the morality of a constitution. If our Constitution is better now that it bans slavery than it was when it tacitly allowed slavery, why is that? The traditional American answer is that slavery violates basic human rights, a.k.a. natural rights, that people have by virtue of being people, regardless of what the law says. What would it cost Kagan to acknowledge as much?