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?

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  1. If our Constitution is better now that it bans slavery than it was when it tacitly allowed slavery, why is that?

    Beats the shit out of me!

    1. Well, bans certain total forms of slavery. Partial slavery is still A-OK with her.

  2. Since it’s clear Kagan is not an originalist (although it’s not clear what she is).

    Yes it is. She’s yet another crack in the foundations of Liberty.

    1. although it’s not clear what she is

      Jacob, don’t be coy. It is clear that she is a Maobamist.

    2. Since it’s clear Kagan is not an originalist (although it’s not clear what she is).

      Yes it is. She’s yet another crack in the foundations of Liberty.

      This comment is incoherent.

      1. The first part is a quote from the article. The second line is a comment on said quote, expressing that it is indeed very clear what Elena Kagan is, a threat to the foundations of liberty.

        Does that make it cohere better?

  3. 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.

    And so what about the 9th amendment?

    1. Good fucking point. WhereTF would any other rights, retained by the people, come from?

      Probably, in her view, from nowhere, as there are no other rights retained by the people.

      What if through perfectly constitutional amendments, the constitution became an engine for despostism – I’d like a justice to be able to outline some criteria for putting the brakes on. So far she’s implied she would go along with “stupid” laws dictating what to eat. Now she’s shying away from any notion of extra-constitutional rights too.

      She’s just a willing cog in a machine.

    2. ^This

      When I saw Sullum write But is she right to say that natural rights should play no role in constitutional interpretation? the very first thing that sprung to my mind was the 9th Amendment. The 9th essentially recognizes the very existence of natural rights and of the idea that rights are no conferred via gov’t or law but exist independent of gov’t and law and the Bill of Rights existed mostly to specifically clarify a few fundamental rights that it wanted to make sure would not be violated, while at the same time using the 9th Amendment as a mean to state that the list was hardly exhaustive. The language of the 9th is as clear as any wording in history as an endorsement of the idea that our rights are independent and arise from our very nature as free-born humans and not because some gov’t has decreed them to be rights (and the corrallary implication of that is a sweeping condemnation of the very idea of positivist rights).

      As an aside, it disturbs me to no end that there was no member of the judiciary committee intelligent or well-versed enough in the Ninth Amendment to actually bring that fact up to Kagan in regards to the questioning concerning natural rights…. I sinceerely hope Rand Paul ends up on the judiciary committee should he get elected. It would help to have one member on the committee who is sufficiently well-versed in the document that the senators are supposed to swear allegience to.

    3. My question exactly, Juice. I hope Coburn reads this thread, because it might just give him some hints on how to pursue Kagan to an actual ANSWER, for once. Ask her what the 9th Amendment means in plain English, and from where she thinks unenumerated, retained rights originate. Anyone who can’t answer that question shouldn’t be able to pass the eighth grade, much less be appointed to the highest court in the land.

      1. I was struck by how stupid she sounded when saying, “well it sounds like a dumb law, teeheehee,” in contrast to how in control she appeared when citing precedents. Her head isn’t completely empty, but the grey cells just aren’t connecting. Somehow, the connection between the Bill of Rights and natural law is difficult for her to see or recall.

        Absolutely correct. This nitwit has no place on the Supreme Court. Of course, neither does Sonia “the Magic Latina” Sotomayor. Both are really capable at summoning the correct precedent for the case at hand — a handy skill in law school. They just can’t think through the logic of the cases they cite.

      2. When Robert Bork was asked what the Ninth Amendment meant, he waffled, saying in effect that if a right is not spelled out (enumerated) in the Constitution, it is not a constitutional right. Many held this against him, and for this and similar reasons opposed his appointment to the Supreme Court. I did.

        Arguably, the Ninth Amendment is the most important of all, because it makes clear that rights (including constitutional “privileges and immunities”) do not arise from constitutions, but rather, constitutions arise from rights (to summarize Dicey on the British “law of the constitution”). This idea was well known to the Founders, many of whom were (let’s face it) British lawyers. They knew that fundamental or “natural” rights did not depend upon a document called “the Constitution”; these rights preexisted the the U.S. Constitution of 1787, and some of the Founders opposed adopting the Bill of Rights because they considered it superfluous and/or dangerous; the danger was reduced by the Ninth Amendment.

        The problem that so-called conservatives have with this line of reasoning is that it is the basis for holding that we have a “right to privacy” — and, indeed, “liberty interests” which bar governments from (for example) requiring women to bring a first-trimester fetus to viability and birth. In my view, Kagan was coached to waffle on this topic because it is the third-rail of American constitutional jurisprudence — a deadly topic which so-called liberals and so-called conservatives have forced each other to dumb down. I don’t blame Kagan for answering Coburn as she did. He and constitutional simpletons of all stripes have eviscerated serious constitutional discourse.

    4. I presume you mean you want her to ignore 9th amendment case law in favor of your personal beliefs.

      1. Well, if by “personal beliefs” you mean a belief that the words mean what they say, and that focusing on case law is therefore irrelevant unless it hues to that principle, then yes.

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        In light of Coburn’s question, what do YOU think that means, Tony? A recipe for mac and cheese?

        1. What I think it means isn’t relevant to a supreme court justice’s job or anything else really–what it means in fact is what the case law says it means.

          But if I did a close reading I’d say it is meant to prevent government from restricting non-enumerated rights solely on the argument that they weren’t enumerated, which I think is the mainstream interpretation.

          1. When is it acceptable to overturn case law? How about Citizens United? Democrats don’t seem to like that case law very much. Is the conclusion of that case now beyond reproach, too?

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

      Applicant: 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.

      Interviewer: I’m sorry, did you say “conferred?”

      Applicant: Yes, that’s right.

      Interviewer: I’m sorry, but there seems to have been some sort of mixup. This is the interview for the opening on the Supreme Court. I think you may be in the wrong room.

      1. Correct you are. Rights are not given to the people by the Constitution or Bill of Rights, it is the other way around, The people retain all rights and gave power to the federal government under the premise that they do not violate the rights of the people who gave them that power.

  4. 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.


    No one, least of all Elena Kagan, believes a word of that posturing pile of platitudinal horse-pucky.

  5. “”No one, least of all Elena Kagan, believes a word of that posturing pile of platitudinal horse-pucky.””

    Would you find it more believable if it came from a republican appointee?

      1. But I would believe it more from someone who believes that human beings have, at least some, natural rights that do not emanate from “the law”. And I would like to know what she believes those rights might be.

        1. Isn’t this, like, something you learn in 8th grade history?

          Yet somehow it’s OK for a law school graduate and NOMINEE TO THE FUCKING SUPREME COURT to disagree with it?

          Is this country really that far in the shitter?

          1. Is that last one a rhetorical question?

  6. Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans.

    Hm, that sounds an awful lot like somebody else…

    1. …. Could it be … SATAN?!

    2. Clingers

    3. Who is coaching these chicks? Is there a handbook that spells out how to obfuscate like this?

      1. Well, when it comes to obfuscating and coaching fat chicks, I’ll just say that few know how to do it quite as well as me *bites lower lip and smiles*

        1. He said “coaching”, not “couching”

        2. I thought he was into “poaching” fat chicks.

    4. Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans …

      … and I will appreciate how very much it will piss those millions and millions of Americans off when I get confirmed and then try my damndest to abridge those rights.

      /unspoken subtext

    5. …but that doesn’t mean that I think it’s important!

  7. There is an unwritten “natural” Right to Self Defense in the Constitution but originalists deny a natural Right to Privacy?

    More reason why “originalism” is pure horseshit.

    Where can I find a list of these “natural” rights anyway? Would pre-marital sex between consenting partners be on that list?

    Natural rights and originalism do nothing but serve as cover for those who want to overturn case law.

    1. The right to “keep and bear” arms is right there in the 2nd Amendment, in the Constitution! Where’s that right to privacy in the Constitution? I’m not saying there isn’t one. You are confusing rights that the Constitution specifically guarantees, and rights that as humans we all have, whether there is a document that says so or not.

      1. You miss the point entirely. Kagan agrees with the 2nd and the right to keep and bear arms.

        The question was if she agreed with Blackstone about an extra-Constitutional natural right of Self-Defense.

        1. You miss the point entirely. Kagan agrees with the 2nd and the right to keep and bear arms.

          You owe me a new Coke.

        2. No, Kagan gave BS evasive non-answers about her views of the 2nd, and if confirmed will be free to try and take away gun rights if that fits her ideology, which is almost certainly the case.

          She can lie here and then do the exact opposite once confirmed, with no personal consequences.

    2. Of course fucking whoever you want to fuck is a natural right, you shrill little pissant. Jesus Christ, you try way too fucking hard.

      1. So you agree with the Right to Privacy.

        Good – the Catholic Church does not. This is all about overturning ‘Griswold vs. Connecticut’ for Scalito and Thomas.

        Taking a birth control pill just knocked these asswipes off their game.

        1. Shut your festering gob, you pusillanimous, malodorous pervert.

        2. Nobody cares some Church says unless they are a member of it! Except for busybodies who want to tell Churches what to do without joining one.

          Can’t you at least try a little?

        3. This is all about overturning ‘Griswold vs. Connecticut’ for Scalito and Thomas.

          What is the chance in hell that if Griswold v. Connecticut were overturned that any state in the Union would adopt anti-birth control legislation?

          1. What is the chance in hell that if Griswold v. Connecticut were overturned that any state in the Union would adopt anti-birth control legislation?

            Id say pretty good in places like Kansas, Wyoming etc.

            1. How many years ago was it that South Dakota tried to ban abortions and failed? If South Dakota won’t, no place will.

        4. What is your point, shrike?

          Everyone here agrees that the conservative justices are fair-weather originalists and fair-weather federalists.

          If you want to try to trap us into an argument about abortion, you’re at the wrong address. I’d post links to several where you might get more play, but something tells me they’d go ignored.

          1. “Everyone” here certainly do not. This place is about 40% conservative and 40% libertarian.

            The rest of your comment is ok.

    3. “originalists deny a natural Right to Privacy”

      I don’t think that’s a fair statement. I’m not even sure there is a proper name for Borkian Originalism, but I would use that as the bases for classifying Originalists.

    4. Natural rights and originalism do nothing but serve as cover for those who want to overturn case law.

      In other words, you yourself don’t believe there is a right to privacy because it’s not spelled out in the Constitution. Well, this originalist does.

      1. I’m actually not entirely sure a broad right to privacy can be inferred from natural rights. Its a bit of a conundrum though because I believe most every infrigement of a persons privacy is a violation of natural rights and it should be recognized that free-born sentient humans can withdraw their affairs into privacy. But, I rather see privacy as an extention of liberty (a negative right, i.e. freedom from prying eyes) as opposed to a right to privacy (which sounds simply to positivist for my tastes). Besides, the “right to privacy” has been used as a means to strike down actions that a right to privacy didn’t need to exist in order to strike down (banning birth control for example being a clear violation of a person’s liberty without regard to their privacy).

        1. The fundamental problem with this discussion is that “right to privacy” is code for “right to kill a baby.”

          And I don’t mean condoms.

          1. Your police state mentality should never intervene between a woman and her doctor.

            1. And what if a woman and her doctor planned a suicide bombing? Would that be okay, too? The doctor is not really the determining factor here.

              You’re trying to obfuscate to avoid a legitimate discussion about whether a fetus is a human life. If it is, then abortion is murder. If not, then it’s simply a medical procedure. It’s a philosophical question, and coming down on one side or the other does not make someone a fascist.

              Once again, your prejudice against Christians prevents you from seeing things as they are. You’d rather attempt to bully people by branding those with whom you disagree as having a “police state mentality” than attempt to understand what others actually believe.

              1. Most people who discuss this issue are just dishonest about the stakes involved. For certain silly liberals, they really do think pro-life people are “out to control teh womenz bodies!” The baby-killing angle is just a cover!

                Only a few, like the delightful Camille Paglia, will even acknowledge the stakes. Of course, that sort of led Paglia to the conclusion: “Yes, it’s murder, and no, I don’t care. Abortion is more important.”

            2. Unless she wants to go without Health Insurance

  8. What a fucking waste of time. Either these hearings need to be done away with, or they need to have some teeth, e.g. nominees must give answers which would give some idea of how they would do their job, or they get no votes.

    1. Because, Pablo, that would violate her natural right not to incriminate herself under the 5th Amendment.

      1. Define “incriminate.” I’m pretty sure that objectively talking about her personal views of freedom and the Constitution would not result in criminal charges…

      2. This isn’t a criminal proceeding. We’re not going to lock her up for failure to be confirmed.

      3. The subject is Kagan who apparently does not believe natural rights exist. Appealling, even unknowingly, to a natural right not to incriminate herself would be a non-sequitor thus making the statement a joke.

        Way too serious, JEB and bubba.

    2. or they need to have some teeth, e.g. nominees must give answers which would give some idea of how they would do their job, or they get no votes.

      The problem with that is that Republicans know that Kagan will get confirmed, and that if they futilely insist on having their questions answered, on camera and on the record, then they will be exposed as hypocrites when a Republican is in the White House and a Republican nominee is also ducking and weaving and refusing to give straightforward answers.

      It would be the right thing to do, but consistently doing the right thing is inexpedient when you’re engaging in partisan politics and your tribe is periodically in power.

      1. But this is particularly an issue for Kagan since she personally spoke out against these hearing where SCOTUS nominees try to hide their viewpoints. I don’t blame the Senators as much as the White House and the nominees themselves. I’d like to see a Senator take a principled stand and vote against her and then show the backbone to do it next time a Republican comes up and plays the same game. If that starts happening, perhaps we have a hope of getting away from these ridiculous question and no-answer hearings.

        1. Don’t hold your breath while you’re waiting for politicians to become honest and principled.

        2. It would be sweet if some Senator read back Kagan’s words about the nomination process and then asked her if she still agreed with those words about how nominees ought to conduct themselves.

          1. I think this already happened, and she said that she was wrong at the time, that she now believes that SC nominees should keep their opinions to themselves, lest they reveal biases.

            She’s crafty.

      2. The problem with that is that Republicans know that Kagan will get confirmed, and that if they futilely insist on having their questions answered, on camera and on the record, then they will be exposed as hypocrites when a Republican is in the White House and a Republican nominee is also ducking and weaving and refusing to give straightforward answers

        Specter is making noises, and threatening to vote based on her lack of answers.

        But he was forced into retirement and won’t be involved with a confirmation hearing again.

        1. Specter is making noises, and threatening to vote NO based on her lack of answers.


    3. I completely agree.

  9. What would it cost Kagan to acknowledge as much?

    The vote of every Democratic senator?

    1. She won’t be able to get into the Progressives’ cocktail parties?


  10. “the Second Amendment *conferred* that right upon individuals . . .” [emphasis added]

    The fact that Kagan used this highly controversial word in the context of what she clearly believed was a *conciliatory* statement aimed at 2nd Amendment supporters speaks volumes about her position.

    1. Good catch, Mad. Good catch.

    2. This delusion that rights are somehow given to us by the government makes no damned sense.

      1. It makes perfect sense in the context of the masses being hopeless fcktards who must be taught, guided, and controlled by a philosopher king.

        1. It’s not like they even have a philosopher king to put forward. Plato would laugh at these fucks.

          1. Plato would say ‘that boy isn’t nearly as cute as Alcibiades. . . . wait, you mean that boy is a chick?’

      2. This delusion that rights are somehow given to us by the government makes no damned sense.

        Government must first be created before it can give rights. But if no one has rights unless they are given by the government, how can anyone have the right to create the government? Chicken/egg (ok it needs some work).

        1. Think you got it right about gov’t and governed, DLM.

          Chickens are a cross of at least two different, but similar, fowl requiring the egg to come first.

  11. There are pretty clearly no such thing as “rights” in nature. They are a human construct.

    We have a right to free speech because we mostly agree that society works better when all views are expressed without fear of punishement, not because of some mystical proclamation.

    1. Ten minutes later, the crew – all three of them – had made their way to the bridge along with Captain Smith: Hanngush 33-9, Smith’s cyborg co-pilot; Nabbboq, the ship’s Tsubian engineer, and Faavrogg Mont, the freight coordinator from the lonely outpost of Qu-Grittnen.

    2. I, and I suggest the bulk of society, am in favor of silencing you.

      1. But if he’s silenced, he won’t bless us with more of his beautiful fiction.

        1. We can settle for the simulations from anon-bot.

    3. The fact that society works better with freedom of speech is the evidence that it is a natural right.

      1. I respectfully disagree with that statement.

    4. So, by definition, you can’t possibly be upset at North Korea or Iran in their treatment of their populations. Similarly, chattle slavery is just another way of structuring society and removal of its prohibition a value-free proposition.

    5. Democrats, always trying to find an apology for slavery.

      1. They haven’t blamed it on Bush yet?

        1. They haven’t blamed it on Bush yet?

          I’m sure they must have at some time.

    6. waaaaaaaaaaaaaah!

    7. Don’t be his porn.

    8. There are pretty clearly no such thing as “rights” in nature. They are a human construct.

      The only “natural rights” are Might makes right. You only have “rights” as long as there is some kind of enforcement mechanism. Otherwise it’s not a “right” it’s a hope a want or an ideal

  12. From the 1789 Congressional resolution submitting the Bill of Rights to the states:

    “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further *declaratory* and restrictive clauses should be added . . .”

    So at least *some* of the amendments submitted by Congress are “declaratory” of existing law. It is fairly clear that the Second Amendment is one of these “declaratory” amendments. It was not “restrictive” of a previously-existing federal power, since even without the Bill of Rights, the federal government lacked power to take away the people’s right to keep and bear arms.

    The amendments proposed by Congress arguably *did* include some “restrictive clauses” limiting the previous powers of the federal government, such as the proposed amendment relating to apportionment of the House of Representatives, and the proposed amendment limiting Congress’ power to raise its own salary (this amendment was not ratified until 1992, when it became the 27th Amendment).

    1. Also note the use of the word “misconstruction” in the Congressional resolution of submission. “Misconstruction” means “misinterpretation,” so the concern was that the federal Constitution might be “misinterpreted” (eg, to deprive people of their right to bear arms).

      1. You know, this wouldn’t be as much of an issue of Illinois had a constitution that was worth a damn.

  13. And why would Kagan give an answer regarding her personal beliefs when it may be inferred from her prior positions that she would rule based on Progressive party politics? Did not Sotomayor do the same thing? She does not believe in natural rights either.

    It is entirely prudent to press her on what she believes are “natural rights”. That is the basis of personal liberty and what the Consitution attempts to preserve in an attempt to allow for the framework of a self-governing people. Unfortunately, the Progressives believe that rights flow from the Government, not a natural right granted to the people by the condition of thier existence as sentinent beings. For those who believe in a higher power, GOD.

    Kagan is truly a Progressive and will make all attempts to obfusicate her position on any issue. She, like most Progressives, is an individual who covets power, not recognizing that the power she has is granted only through the authority allowed by consent of the people of the United States to be governed.

    I do not feel she is fit for SCOTUS.

    1. Yer damn skippy she ain’t. It’s not just your feeling.

      But the unfortunate reality is we will be stuck with her jackassery, because she’s pretty much certain to be confirmed.

      Hopefully she will be confined and largely ineffective as that far left, wacky justice most people don’t like to acknowledge. Pretty much the way the progressives and liberal black people view Clarence Thomas.

      1. Her appointment is a just punishment for the jackasses who voted for Obama.

        Chicago, I mean you.

        1. And that includes all the voters who were dead at the time. You rose from the grave just to vote for *this* joker?

          1. Oops – I forgot that the term “joker” is racist.

    2. She, like most Progressives, is an individual who covets power, not recognizing that the power she has is granted only through the authority allowed by consent of the people of the United States to be governed.

      There is no consent to being governed among most Americans. The alleged authority you talk about flows from a false premise, that 50.1% of the people who bother to vote can consent for everyone else. Consent is inextricably an INDIVIDUAL act, not a collective act.

      1. This cannot be repeated often enough. There is no such thing as collective consent or decision making.
        I didn’t sign anything, so you can shove your social contract up your ass.

        1. So because you didn’t sign the Constitution, you’re not bound by it?

          1. Individuals are not bound by The Constitution, the government is.

            And The Constitution is never what liberals mean by their misuse of the “social contract” concept anyway.

          2. Of course not. The Constitution only binds the government. It is a document of limitations on the power of the central state. When it comes to binding the people, you might be thinking of the laws passed by Congress. Now, I don’t feel morally duty bound to follow them, but I do so out of self preservation, because the cops have guns and Tasers they’d really like to use on me if I don’t.

            1. The constitutional prohibition of slavery binds us all, not just our government. In any event, if “participatory governance” (government of, by, and for “We the People”) means anything, it means that we as agents of such governance are bound by limitations thereon. Put differently, any person acting under “color of law” (that’s the ancient phrase) is deemed to have accepted all legal constraints , including constitutional constraints.

  14. Ha Ha! All of a sudden, smug Daily Show-esque quips about appointees not answering questions don’t seem so funny, do they Ms. Kagan?

    1. Coburn should be throwing that shit right back in her face.

  15. I’ve been thinking the past few days that the Senators ought to take an approach that would show how false and evasive Kagan is by using examples of foreign nations. They could ask whether, say, Cuba’s jailing of dissidents or Iran’s oppression of women violates anyone’s rights. Since she wouldn’t be asked to rule on Iranian or Cuban cases, she’d have no reason to refuse to answer, yet her philosophy would be duly exposed.

    1. She would not answer those hypothetical questions. She would duck and evade them, because she’s not an idiot. She knows the path to confirmation lies in revealing nothing about her judicial views.

      1. I agree that might be the route she takes, but it would show the length she has to go to avoid answering questions and thus remain an enigma. That in itself shows something very suspicious.

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

    Kagan: Senator Coburn, you ignorant slut. The Constitution is the law of the land, not the Declaration.

    1. And she won’t answer questions about that, either.

      1. Regardless, a depressingly large number of Congressmen routinely confuse the Constitution with the Declaration. Maybe they really believe that they have sworn to defend the Declaration. Anyway, King George III will get his, you just wait!

        1. Don’t be too hasty. Lincoln was neither the first nor the last constitutional scholar to assert that the Declaration of Independence has constitutional significance. I think he made a compelling argument; it was the key to his famous Cooper Union address; indeed, it was arguably the basis for his election to the presidency. He also asserted that the Northwest Ordinance (adopted by the Continental Congress) had significance in resolving disputes as to the meaning of the subsequent U.S. Constitution. Obviously, the “meaning” of the Constitution is not always a simple issue, which is why the Supreme Court’s members often disagree. If a constitution is more than a document — is, indeed, a verb — then the Declaration of Independence is part of the “law of the constitution” by which constitutional disputes get resolved and by which “We the People” are self-governed.

    2. Take it in context. The Constitution says nothing about where our rights come from or whether they exist without the Constitution, which is what Coburn is asking her. The Declaration does, and has long been used as a sort of framing device for viewing Constitutional rights.

      So it makes sense for Coburn to say that.

      1. Problem is, conservatives think natural rights come from a god, instead of from our very nature as rational animals. This is problematic in itself, and leads to many wicked excesses.

        1. Unlike the excesses of the communists, which were not wicked, just a series of unfortunate accidents.

          1. Fuck off, Max, you bigoted piece of shit.

            1. Have a glorious Fourth!

              And I hope you will forgive the Founding Fathers for that bigoted document, the Declaration of Independence:

              “. . . the laws of nature and of nature’s God . . . endowed by their Creator with certain unalienable rights . . . appealing to the Supreme Judge of the world for the rectitude of our intentions . . . with a firm reliance on the protection of Divine Providence . . .our lives, our fortunes and our sacred honor.”

        2. “rational animals”. That’s funny.

        3. I’m a Conservative and atheist. I don’t believe my rights come from a god of any sort. I do believe I have natural rights because I was born human. When the non-human animal is found that can read, write, cipher, and reason then I’m willing to accept that critter as having natural rights, too.

  17. Ow! My damn rectum is bleeding again.

    1. Ow! My damn rectum is bleeding again.

      This stop picking at it!

  18. 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?

    It could cost Kagan a spot on SCOTUS if she answers any pertinent question fully and/or honestly.

    And it would also harm her liberal political tribe if she were to employ such candor.

  19. Naming rights was the founders first mistake. The Bill of Rights gives statists like Kagan the tool to deny that we own our other rights.

    1. Doesn’t the 9th Amendment take care of that?

      1. It tries.

        1. It’s underutilized, in my opinion. The 9th has great power, yet it is oddly neglected.

          1. The 9th has great power, yet it is oddly therefore it is neglected, ignored, and denigrated.

            1. By would-be destroyers of the Constitution? Sure. But where are its defenders?

              1. Goofing off here instead of running the world like we should be.

              2. The defenders are hoarding guns, gold and grain.

          2. It’s an ink blot; noone today can rightly say what it means, and judges should not try to.

            1. Fuck you schmuck, it guarantees a presumption of liberty.

              1. Rampant individualism!

      2. I thought the 9th was a compromise to get the rest of them passed in response to that very criticism?

        Oh shit, that’s historical context and we can’t have that. Never mind.

    2. Ummm, no. Without the Bill of Rights, there’d be no freedom of speech, no right to keep and bear arms, none of that.

      The problem was that the Bill of Rights was nowhere near long enough 100 amendments rather than 10 — and didn’t include a provision for hanging any government official (after a fair trial, of course) who got creative in the interpretation of any of these rights, especially the Ninth and Tenth.

      1. Freedom of movement isn’t listed, and I retain that right. And you think I wouldn’t also retain my freedom of speech without the first amendment?

        1. And you think I wouldn’t also retain my freedom of speech without the first amendment?

          Judging from both our jurisprudence and the British and Canadian examples, no, I don’t think you or I would have as expansive freedom of speech without it.

          1. Probably so. But I can’t help but think that if there were no first, the speech right would be assumed anyway. And maybe with even less haggling over the extensiveness of it.

            1. But I can’t help but think that if there were no first, the speech right would be assumed anyway.

              It would be assumed to be a privilege granted by government to favored individuals who tow the lion.

              Do you really think Progressives (and to a lesser extent, conservatives) would allow anything like the levels of free speech we still have without the First?

              Legal internet pr0n would be so never having happened.

              Legal internet would be kinda dicey, too.

              1. It’s “toe the line”.

                1. It’s a “inside joke.”

              2. Fair point on free speech. We are currently witnessing a complete disregard of the intent of the founders of this nation in regards to free speech in the campaign finance debate and response to Citizens United.

                The framers may have been OK with restricting other types of speech, like tittie bars and porn, heck it probably wouldn’t have occurred to them at all. But to think that we would have restrictions on speech that is specifically and entirely political is staggering. The notion that half of the current members of the supreme court agree with the limiting of political speech is mind-boggling. Their entire job is to defend the people from those who would encroach on their rights using the government’s powers in violation of the constitution, and yet they see no problem with bending to the will of the legislature in restricting political speech. I can’t even begin to get my head around that.

                Worse, they seem to find the argument that speech threatens our political system compelling. Even if you buy into the notion that political speech threatens our government, the idea that limiting such speech is within the bounds of constitutional powers is ludicrous. Unquestionably you would need a constitutional amendment to have such powers granted to the federal government. But we have a spare majority on the court who believe that. We are one vote away from the tyranny of “important or popular” == “constitutional”. This is precisely the opposite of the purpose of our constitution and court system. Nice going, assholes.

        2. If you consider driving part of “freedom of movement” you do not retain it. Driving is a privilege granted by the state and it can be denied to you anytime they want.

          1. Driving has nothing to do with the freedom of movement. If I want to walk to my neighbor’s house, not even Kagan would be able to challenge that.

        3. Your freedom of movement is guaranteed if you live in New London, Connecticut…especially if your land has good redevelopment prospects.

        4. Lots of our constitutional rights “go without saying” and therefore were not enumerated in the Bill of Rights. Put differently, the Bill of Rights focused on specific issues that were at that time “contentious” or uppermost in the Founders’ minds.

          Obviously, the most fundamental “natural right” was and remains that the Rule of Law shall be based on the Rule of Reason, such that absurd laws are lawless. To enumerate the emanations and penumbras of “natural law” would have required a multi-volume Bill of Rights, one of whose volumes would have focused on how law evolves, how (for example) “due process of law” — originating in the Magna Carta’s restatement from Latin into English in 1359 — evolved case-by-case, as must all good law that is reasoned. The “reason of the law” is the life of government under law.

          To urge that judges decide cases according to “the letter of the law” sounds fine, until one actually studies law, especially constitutional law.

          For example, the word “process” in the phrase “due process of law” means much more than a simple reading suggests, and includes substance. Thus, an absurd law violates due process of law. Why? Because hundreds of years of case-by-case interpretation of that (originally Latin) concept rightly concludes that this outcome is essential.

          The “original meaning” of the U.S. Constitution ordained that constitutional law shall evolve, case by case, pursuant to common-law principles; that’s what Article III, section 2 “means” and meant to the Founders. Thus, what “cruel and unusual punishment” meant in 1787 is not necessarily what it means today. Constitutional democracy is an elevated endeavor; we have to stand on the tips of our intellectual toes to discern it.

      2. Without the Bill of Rights, there’d be no freedom of speech, no right to keep and bear arms, none of that

        Well, yes and no. The rights enumerated in the Constitution do not originate with the Constitution and do not rely on the Constitution for their existence. But being set forth and expressly stated therein theoretically, at least, makes it clear that those rights exist and circumscribes the government’s power vis-a-vis those rights.

        Even if not stated in the Bill of Rights, under the natural law theory, we, the people, would still have those rights – they would, in the abstract, exist, as a function and characteristic of the human condition.

        But it sure as hell would make it far more difficult to enforce them as against government power.

    3. In theory, that’s why the Ninth Amendment exists. The Ninth was intended to preserve the “great residuum of rights” held and retained by the people. Consider it the presumption of liberty clause.

    4. Are you kidding? Without the Bill of Rights, we would be totally screwed.

      1. Yup. Because, amongst idiots, a concept is just so much smoke unless it’s written down. And that’s truly frightening if you love America and what it stands for.

        1. You’re right. And you’re right again.

      2. See, someone agrees with me!

    5. Naming rights was the founders first mistake.

      So if the only amendment we started with was the 9th, everything would be peachy.

      1. Theoretically so. Unfortunately our greatest legal minds have proven incapable of reading and following amendment 9, or any of the others for that matter. They seem to regard the constitution as more of a guideline, and the word “unconstitutional” as a high-handed substitute for “undesirable”. They don’t seem to understand that there are a great many evils which are constitutional and a great number of highly desirable acts that are clearly unconstitutional.

      2. Put it this way: these rights are definitely yours and the others we’ll try to defend with the 9th amendment. You are asking for trouble with a scheme like this.

  20. I guess the silver lining here is that the justice she is replacing was just as bad at protecting natural rights and was about as anti-originalist as they come.

    It’s a wash. But jebus, let’s hope Thomas is in good health. We can’t afford to lose him.

  21. Why can’t she answer the questions with a disclaimer that she can’t be bound by any answers she gives in the hearing and that she might change her mind later? It is not as if the Senate can do anything about it once she is confirmed.

  22. the Second Amendment conferred that right upon individuals, and not simply collectively.

    No, you stupid cow; it *forbids* the government from taking that (pre-existing) right away.

  23. Not to mention the Bill of Rights stuck us with stupid crap like the Patients Bill of Rights and the airline Travelers Bill of Rights.

    1. No, it didn’t. Stupid, demagogic legislators did that. And the people eat it up.

  24. I almost hate to ask, but how can there be a fundamental right to an item? Aren’t fundamental rights concepts, like life, liberty and happiness? Equal protection under law, free speech, privacy etc? The closest I could come might be the right to own private property. Maybe Coburn should have used a different word? I’m sure I’m wrong here, just can’t figure out why.

    1. I almost hate to ask

      That’s almost certainly a disingenuous statement.

      but how can there be a fundamental right to an item?

      Because you, and everyone else, fundamentally own yourself. You own your body — you have the fundamental right to not be a slave. And all those other rights flow from that proposition.

      1. Is it disingenuous to not want to be embarrassed? I don’t get it.

        1. I wouldn’t describe it as having a fundamental right to an item, as that seems to imply that everybody gets a gun. I would view it as an extension of the right to life, liberty and property. The Founding Fathers believed that a disarmed citizenry would be too easily subject to violations of life, liberty and/or property such that these fundamental right necessarily had to be accompanied by a right to bear arms. It’s the same idea with the freedom of the press. People don’t have a fundamental right to a printing press. But the Founding Fathers believed that, absent a freedom of the press, the individual’s right to life, liberty and property would be unduly threatened. At least, that’s my take on the issue as somebody who admittedly is no expert on the Founders.

        2. you have a fundamental right to self-defense, with the aid of a tool if you so choose. the current tools of choice are firearms, but prior to that one would “arm” himself with edged weapons, or even sticks.

          “Man-at-arms (also called armsman or coistrel) was a medieval term for a soldier”

    2. You have a fundamental right to self-defense. The ability to exercise that right, however unfortunate this reality may be, is largely dependent upon your ability to keep and use certain man-made devices – i.e., weapons; i.e., “arms.”

      It’s pretty hard to effectively defend yourself against immediate, significant threats to your personal physical safety and life with nothing more than your bare hands. If we accept that all people have the inherent right to act in self-defense, the next question is how? Use a rock? A pointy stick? A knife? A spear? Bow and arrow? If a government takes away your personal weapons, it effectively has taken away your ability to protect yourself, and therefore has denied you your personal right to defend yourself.

      See the discussion in Heller. The simple reality today is that the most commonly selected and generally effective means of defending one’s self is by use of firearms – whether handguns or long guns. And the most commonly chosen of those are handguns. The personal right to keep and bear “arms” is a perfectly logical and rational outgrowth of the inherent natural right to defend yourself.

      1. It’s pretty hard to effectively defend yourself against immediate, significant threats to your personal physical safety and life with nothing more than your bare hands.

        Speak for your fucking self.

        1. Me with an automatic rifle at 30 paces.

          Chuck Norris with bare hands.

          Guess who is going to get his ass kicked in that fight?

          1. Chuck Norris would shove that rifle up your ass.

          2. Chuck Norris cannot be hurt by non-magical weapons.

          3. Do not shoot Chuck Norris. You’ll only make him angry.

    3. You have a right to own a gun, not a right to actually have one. There’s a huge difference. The government is not supposed to interfere with your ability to purchase one, but it does not have to provide you with one. That why it is a right and keeps it from being a “positive right” (more properly called an entitlement).

      1. How can you bear arms without actually having them?

        Your logic makes my penis sore.

        1. ClubMedSux probably stated it better than me. You have a right to own and bear arms, but that is far different than where Lamar seemed to be going, which was viewing guns as some sort of “positive right” or entitlement where we get guns bought for us with taxpayer money.

    4. Thanks. I think I am more confused about what “fundamental right” means. Constitutional rights I understand. Guns, yes, very much a Constitutional right.

      I see that the right to a gun can also be described more as a right to self-defense. That certainly makes sense, but any good liberal will tell you that all you need is a rape whistle and not care if you get mugged.

      Big Chief: I dig.

      1. As to “fundamental” rights – I suppose that term is a more modern formulation, but I essentially mean to refer to natural law. The court has used the formulation along the lines of “rights that are implicit in a well-ordered liberty.” Rights that inhere in the condition of being human. Yeah, it’s kinda like nailing jello to a tree.

        1. “nailing jello to a tree” NICE

  25. Whether or not “Natural Laws” (Or any other Moral Philosophy) exist is irrelevant when it comes to governments and their laws. The power structure is really all that matters. Which is why it is good to have people who see the way you do in power. You can talk about “Rights” all day long, but in all practicality people only have the rights that they have the power (through whatever means) to keep.

    1. But the very existence of the ninth amendment is proof that there are rights that exist that were not specified or enumerated in the Bill of Rights. If there are rights that exist but are not rights that are recognized or enumarated or “granted” by the constitution, where do those rights arise from if not our very nature as sentient humans?

      1. What I’m saying is that it doesn’t matter. Tell the people of North Korea they have rights as sentient humans. Unless they have some degree of power, which they do not, to assert those rights all the theorizing in the world doesn’t mean squat. We have an individual right to keep and bear arms because our government doesn’t (yet) have enough power to take that right away. If they had the power they probably would. Whether we view it as a “Natural Right” or not is irrelevant. They know that if they tried confiscating our guns, they would be hanging from the cherry blossom trees. That’s what it really boils down to.

  26. A Better Bill of Rights —

    Amendment 11: We really, really mean it about the Second. If you violate or try to change that, people bearing those arms get to use them on you, you stupid cow.

    Amendment 12 …

    1. Actually, a better BoR:

      2. The right of the people, as individuals, to keep and bear arms such as those commonly used in defense of self and in the common defense, shall not be infringed.

      …or something like that. Pretty hard to make it totally airtight, because people always will come up with novel ways to “interpret” the words and read new and different meanings into them.

      1. I prefer the stupid cow part, but would be sure to mention the big, awkward, “look, I wear jewlery so I’m not a lesbian” earings too.

  27. I wish it were James Coburn asking the questions:

    Mr. Cramden: Flint, I owe you my life. The medic said four more seconds, and I…
    Derek Flint: *Three* more seconds.
    Mr. Cramden: Damn it, man, is there anything you don’t know?
    Derek Flint: A great many things, sir. But, nothing of consequence.

    Mr. Cramden: Flint, the world’s in trouble!
    Derek Flint: Well, it usually is, but it manages to extricate itself without my help.

  28. Still, it’s hard to believe that Kagan really thinks there is no external standard by which to judge the morality of a constitution.

    Das Kapital?

  29. 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?

    I’m not particularly devoted to defending Coburn, but as I read the question I think he is referring to a “natural right of self-preservation” which requires a means by which to exercise it.

    And, despite the assertions of people like Kagan, there is still a very real need to exercise the right to self-preservation; especially in places like the south side of Chicago.

  30. I noticed during her testimony a couple of days ago that she said that the First Amendment “grants” us freedom of speech. This of course is not true. The First Amendment prohibits the government from abridging our natural right to freedom of speech. Based on this I say she does not agree that we have natural rights.

    1. My feeling is that Kagan views government as a dispenser of rights, not a guarantor.

      1. As with all the other progressives. All power emanates from the state, which, in its beneficence, now and then dispenses small allowances to its citizens, such as certain (albeit limited and circumscribed) “rights” – revocable and modifiable at will, of course.

        1. It’s such a stupid way of thinking. Aside from the total ignorance of history it requires, it also flat out ignores any concept of common sense. Roughly half the country is not progressive, even by the most generous measure. So, um, if you expand power to the point that those other guys are in office when the last vestiges of limited government fade away, what does that mean for your cause?

          I leave aside of course the fact that allowing government total power is highly immoral–it’s basically saying that might makes right.

        2. Yeah. Kagan and her progressive brethren seem to believe that freedom and liberty and the right to be left alone, as a condition of happiness, is subject to change, depending on the majority’s will at any given time. Again, it goes back to bloody tribalism. Rinse and repeat. It’s mankind’s cosmic joke on itself.

    2. See, this is why the Bill of Rights should have had thousands of enumerated natural rights, as well as an additional clause saying that the lack of enumeration does not presume an individual does not have this non-enumerated natural right. This would be enough to block alternative judicial theories from exploiting the vagueness in the Constitution in order to restrict individual rights.

      1. Conversely, this is why several of the Framers argued that a bill of rights was dangerous and unnecessary, because (1) Congress had only those specific, limited powers enumerated in the Constitution and (2) there was no way to list all the rights that the people have, and if you list some, people will assume that’s all there are – which is what the 9th was supposed to address, but it still leaves unanswered the question of which rights are sufficiently “fundamental” as to warrant protection from government intrusion. As mentioned above, the presumption was individual liberty, rather than governmental power. These days, not so much.

  31. The rights are not “God-given” but “[E]ndowed by [our] Creator.”

    I wish conservatives would stop trying to imbue fundamentalism into our founders.

    1. Please further elucidate the distinction between those two formulations.

      1. A Creator could be interpreted as nature itself.
        Though that raises its own interesting points about what constitutes a god.

    2. It’s pretty basic. So fundamentally basic.

  32. Why are we discussing the second amendment as a right to self defense, anyway? I thought the right was meant to give the citizenry the tool to overthrow tyranny if necessary.

    1. All of the above. It’s pretty meaningless to have the right to act in the common defense, or to join with your neighbors in overthrowing tyranny, if you’re unable to defend your own damn self from the highwaymen and robbers.

    2. Not just overthrowing tyranny, mind you – to act in the common defense of the “free state” – to repel invasion or aggression from without, and suppress insurrection from within.

      1. I see trouble in the narrow self defense interpretation. What about hunting?

        1. Didja read Heller? The opinion discusses the hunting use – and read the transcript of the oral arguments as well. Kennedy asks a couple very good questions – I almost cheered out loud when I was reading the transcript.

          Although I don’t think hunting was at the fore of what the Framers were concerned about, I believe it certainly can be argued that the right to keep “arms” also covers those used for hunting. The problem, however, is the disingenuous argument that arose in the 1960’s – that we can accept “sporting” firearms, but not those scary “military-style” ones. Whereas the 2A quite clearly was meant to protect the rights of “the people” to own military-style “arms.” Which presumption is what the SCOTUS opinion in Miller was based on.

          But certainly, the right to have “arms’ to procure sustenance has to be considered a right – the right to protect your own life by seeking out and hunting down food.

          I would not limit the 2A to protecting only self-defense – I believe it’s reasonably clear the Framers were motivated by several concerns in protecting the individual right to keep and bear arms. The primary purpose they stated in the actual amendment, of course, was to provide for the common defense of the state – but that certainly was not the sole reason to assure that the people would continue to have the right to arms.

          1. How about the simple fact that governments shouldn’t be powerful enough to tell us what we can or can’t own regardless of how we use it?

            1. That’s really the key point isn’t it. Limiting government power which is achieved mainly by limiting their money supply.

            2. Hobbes, Locke, Blackstone, and the Founders all agreed that this is precisely why “we” create governments — first and foremost, because we want to secure a society that is not ruled by the law of the jungle in which any person or group possessing sufficient coercive power can “get away” with killing, looting, and raping — doing whatever they want.

              Liberty under law implies that “We the People” secure our liberty by rules that constrain all equally, and this requires constraining (with all due process guarantees) what each can own and do, etc. Indeed, for this purpose “We the People” give our government a monopoly of coercive power.

              Civilization depends on “ordered liberty”; if we are to be equal in our liberties then we must be equal in the restrictions on our liberties. The ancient Greek lawgiver Solon called this “isonomia”; without isonomia, history teaches, “demokratia” is impossible.

              1. Hobbes supported tyranny. the founders specifically sought to prevent tyranny. Which is why they did not “give our government a monopoly of coercive power”. They institutionalized our right to vote and the 2nd amendment among other things as a check to government power.

        2. Why would the framers need to put anything about a right to hunt with a gun in the constitution? That would be like writing you have a right to eat, drink or sleep. Wouldn’t have occured to them there would ever be a question about it.

    3. A great example of self defense.

    4. Nah, tyranny is tr?s chic these days.

    5. It wasn’t meant to “give” the citizenry anything. It merely protected a natural right to defend oneself.

    6. Overthrowing tyranny is a subset of the right to self defense.

      You have the natural right to defend yourself against anyone who aggresses against you, be it a robber, a foreign power, or members of the government running the country you reside it.

  33. 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.

    Fuck that.

    What do you think of the first amendment?

    Oh, I recognize that this anachronism is important to millions of people, despite that it’s complete bullshit. But because of the consensus on the issue, I’m not going to make a direct run at it… yet.

  34. Earlier this week, didn’t Kagan say that she would consider statutes other than the constitution, such as foriegn laws in her decision making?

    If so, her responses to Coburn seem to contradict her earlier statements.

  35. But did you notice how funny she is?

    1. Looks aren’t everything.

      1. She puts me to shame. Nightly.

    2. Yeah, she’s a regular fucking laff riot.

      Which of course is a primary and significant qualification for a SCOTUS justice. I mean, who’s funnier than Ruth Vader Ginsboig?

  36. This country is doomed when we take a nominee seriously who is bothered by elements of the Bill of Rights, but accepts them because “they’re important to millions and millions of Americans”.

    That should be grounds for disqualification right there.

    1. If only a minority of Americans supported the concepts that form the Bill of Rights, she’d presumably be against it.

      1. What do you mean, “presumably”? And what’s with the conditional tense?

        She clearly is against those concepts, regardless of whether supported by a majority or minority.

        1. Hi, my name is Mr. Bug Up Prolefeed’s ass. Today is Friday, which means it’s my day to shine!

  37. So sport shooting isn’t covered?

  38. I loved this exchange, apart from the embarrassed feeling I get whenever Sen. Coburn speaks. I don’t see why any of you should have a problem with Kagan’s answer. If you claim there is a god-given natural right to something, but it’s not spelled out in law, then I have an equally legitimate case to say there’s a natural right to something else, say eating babies. That’s the problem when you appeal to mystical forces rather than secular law.

    It’s just libertarians see government as a universal bad thing, something that only negates rights, and that forces them to believe in this horseshit. The only premise here is not that rights are inherent, but that government is inherently detrimental to rights.

    1. If you and I were on a desert island together, far, far from the government you love so, so much, would you have any objection to me beating you to death with a fishing net full of broken seashells? Would you try to defend yourself? Would you even make a peep?

      1. I’d object and I’d defend myself, what’s your point?

        1. On what basis to you object?

          1. Survival instinct.

            1. No, you defend yourself through survival instinct. On what basis do you object?

              1. On the basis that I don’t want to die. I don’t formally object, as there is no law to appeal to. I just object.

                1. Stubborn in your ignorance to the very end.

    2. That’s the problem when you appeal to mystical forces rather than secular law.

      The words within the Bill of Rights would not come under the moniker of “mystical forces”. But that’s just my opinion.

      1. Let me be more clear. Or, should I say, let me be as clear as Justice Stevens:

        “Mystical forces speak to me through my fillings, telling me that second amendment ‘stands apart’ from the other amendments that surround it. That the Bill of Rights applies to individual rights, except when it doesn’t, which is where the second amendment comes in. Now let me tell you about the mystical forces that I feel whenever I read the Commerce Clause.”

        1. Is this like the tingle that runs up Chris Matthew’s leg when he thinks of the President?

    3. Tony, it’s amazing how, despite coming here for so long, you manage to completely miss the mark.

      The enlightenment concept that the founding fathers used was that we are born free to live as we choose, but we have surrendered some of that freedom in order to put in place a government to help us create a civil order. There are valid arguments to be had about how much freedom we need to surrender for this, and it would be fine if that were was the basis of the arguments between liberals and libertarians.

      Instead many modern liberals have abandoned this idea and returned to the “monarchial” concept that we are all born serfs and our rights are granted to us by government (historically the monarch). The fact that liberals have abandoned the belief that we are born as free actors is one of the most distasteful aspects of the progressive movement.

      1. Very well said.

      2. VERY well said.

  39. “Natural rights” is the vehicle by which so many anti-women groups go about trying to get the government to outlaw abortion and contraception; hence a female’s civil rights to her own body, mind, health, life and life’s direction; not to mention peace of mind. All the same things the men take for granted when it comes to their very being. Justice-to-be Kagan is not a fool and she has been around long enough to understand how the men in the Senate play this game.

    1. Some people deliberately run over people with their cars. Therefore all car ownership is invalid.

  40. That’s the problem when you appeal to mystical forces rather than secular law.

    The concept of “natural rights” is an appeal to principles, fuckstick, not to “mystical forces”.

  41. “although it’s not clear what she is

    Just like Napolitano and Sotomayor, it’s obvious that she is a neckless, progressive hippo. Strangely, in comparison to this lot, Hilary appears to be a swan.

  42. If we’re going to discuss Natural Rights, let’s get some basics down. Here’s the part of the Declaration of Independence that is so often quoted:

    “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.”

    But it is very important to read the next sentence as well:

    “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

    Clearly, Jefferson believed that our ‘unalienable Rights’ pre-exist our government. God (Creator, if you prefer) gives us our Rights. Government secures those rights. It does not create them.

    Elena Kagan seems to believe quite differently when she states that the government, via Keller, confers a right (to bear arms) on the people. This is simply inconsistent with our Founders’ understanding of government and its relationship to the people.

  43. The lack of understanding here of basic legal/constitutional principles, and of the Constitution, and of the extra-constitutional nature of the Declaration of Independence (surprise! — it has nothing to do with your constitution, folks) is truly astounding. Blinded by your own myths and the triumph of blather over reason. Facts will never penetrate the mind of those governed by their beliefs.

    On substance: Go read Locke and Rousseau on natural rights (and numerous others following in their steps). Do I have a right to protect myself when attacked. Of course. Beyond that, agreement on what natural rights encompass is about as unanimous as interpretations of the Bible. A natural right to a gun to use on anyone not so similarly armed, who is not threatening me, I think not (at least there was some honour amongst knights on that count –swords at least — and even the old west, or Burr gunning down Hamilton).

    The Declaration of Independence, written by Thomas Jefferson (President # 3, FYI), was basically a Reader’s Digest version of John Locke’s Chapter XIX (On the Dissolution of Government) of his Second Treatise of Government). If Jefferson had published that today, he would certainly have been sued by Locke’s heirs for copyright infringement (assuming they hadn’t already sold off those rights 🙂 ). Please note, as well, that Jefferson was, for all intents and purposes, an atheist. It is hilarious to see clowns like the Republican Senate candidate in Nevada, Sharon Angle, invoking his name and saying that he has been misread and that the Constitution doesn’t call for the separation of Church and State (leaving aside that Jefferson wasn’t even in America when the Constitution was written, did not write it, nor signed it — although definitely “in the loop” — just look at the 1st amendment).

    The Declaration was not creating a new government. It was a purely political — and polemical — document justifying the revolution — much like Locke’s Treatises on Government justified the principles of the Glorious Revolution in England of 1689.

    Cobourn’s question was typically red-herring like. Natural rights play no part in the Constitution — that embodies man (person) made laws/principles. Nor should they play any role in deciding cases. As Kagen rightly pointed out, past precedents should be the guide. Otherwise you are just making it up based ON YOUR OWN PERSONAL BELIEFS. While Reepblicans may not have a problem with their own imposing such a world-view without any regard for past precedent and the reality of the law, that is not what a judge should be doing.


    1. You are correct that the Declaration did not create a new gov’t. But you realize the Constitution says “In order to form a more perfect union” and that this is a reference to the Declaration.

      – God/Creator gives us our Rights
      – Government exists to secure those rights
      – The Constitution spells out the structure of said government and then establishes the LIMITS of what that government may do.

      “We The People” only ceded very specific powers to the Federal Government. ALL the rest were to be retained by the States and/or The People.

      It is VERY IMPORTANT that nominee Kagan understands and supports these basic concepts. I have serious doubts that she does.

      1. Wrong, dude.

        Your response also reflects a reliance on belief rather than facts. You are entitled to your own beliefs, but not your own facts (something Jefferson would certainly endorse 🙂 )

        The reference to “a more perfect union” is a reference to the imperfection, if you will, of the “union” under the preceding Articles of Confederation. The gathehing in Philadelphia was designed to come up with a plan that would improve upon that defective initial document of not quite fully consummated union.

    2. You do understand there is a difference between “church” and “religion”, right?

      1. If that is a response to me, that appears as a non-sequiter — I fali to seee how it has anything to do with my comment. But for the record, yes I do appreciate the difference between religion and church. One is a set of superstitious beliefs that belie all facts and reason, whereas the other is the institutional authority established to perpetuate and enforce these superstitions.


        1. Something tells me you’ve been watching too much soccer.

          1. I will depend on the wisdom of that immortal sage, Dilbert:

            “Never argue with idiots.
            They just drag you down to their own level
            and then beat you with experience.”

            Who won?

  44. Tony, you write “libertarians see government as a universal bad thing”. I’m not a Libertarian, but I know they do NOT believe this. Conservatives understand that “power corrupts and absolute power corrupts absolutely”. We believe that power belongs to the People and that the Federal government has ONLY those powers given to it by the people. That is what “We The People” did when we ratified the US Constitution. Congress didn’t pass the Constitution – We The People did.

    So understandably, Conservatives get upset when the Federal Government exceeds its Constitutional powers and legislates something like healthcare. No one ceded that power to our Congress or our President.

    1. So how does government regulating a women’s (natural, hee, hee) right to an abortion square with to upset conservatives supposedly have with government exceeding its constitutional powers? Where does the constitution grant government this power? Certainly this would have to be considered a violation of your supposed “natural” rights. It seems to me that the only rights conservatives beliee in — natural or otherwise — are those they believe in. There is a word for this (actually, many).

      1. I am surprized you don’t already know this. One of our Natural Rights is the Right to Life. In an abortion, there are TWO individuals, the mother and her child. Conservatives say that to allow a mother the right to abort is to allow her to take this Right away from the child.

        So the government correctly has power to protect the Life of both the mother and the child. There is no violation of Natural Rights here.

        1. You are relying entirely on your beliefs here, and the demagogic rants of your leaders. As you said, “Conservatives say that…” Think for yourself.

          Your response does not in any way address the issue. Where does the government get the “right” to limit what a woman does with her body? Show me where that is written. What do you think happened in the state of nature (where natural rights allegedly originate)? People did what people wanted. That was the true exercise of natural rights. If government is only there to protect these rights, then it should only be protecting those rights we naturally “own” in the ABSENCE OF GOVERNMENT.

          And as a biological fact, there are three people involved. Where is the father?


          1. Your arguments presuppose the non-existence of natural rights. Tell me, on what grounds do you oppose or support government action? Exclusively on self-interest? Based on “collectivist” values (I put the term in scare quotes because of the preponderance of fools who assume that the collective has a will, and that we have the intelligence and ability to interpret said will)?

            You are a fool, but your lack of understanding the negative right arguments for and against government restriction of abortion already made that apparent.

            1. Your reliance on subjective beliefs and your leaders`pablum suggest a lack of individual free will. You have bought into the collectivist Kool-Aid of the demagogues who lead you by the nose. Any theologically based argument (which is what clearly drives you, since you clearly are out of your depth when you think a philosophical committment to `negative`rights would support a state ban on abortion) is almost, ipso facto, one that is the abnegation of individual self-determination.


              1. I didn’t bring theology into this — you did. There’s a perfectly consistent negative rights argument to be made in favor of abortion restrictions, even if you don’t agree with them (see: SugarFree, every other libertarian on a given abortion thread on

    2. I get it, but what is constitutional isn’t whatever you believe it to be, it’s what is determined to be so within the system itself. Unless you’re prepared to start a revolution, you have no choice but to accept that. I make no guarantees about the current scotus, but if they declare a healthcare bill unconstitutional, then it will be. Your fringe constitutional interpretation is irrelevant to the world.

      1. I do not understand your post. What is Constitutional is “what is determined to be so within the system itself”?? What does that mean?

        Oh, btw, I do love how you tried to dismiss my position by calling it ‘fringe’. I’m sorry, but declaring that our Rights exist prior to the creation of a government and that government exists to secure our rights (not to create them) is accepted by millions of people in this country and not a fringe idea.

        1. Tony’s point may not be expressed as clearly as it could be, but I think he is making a distinction between “positive” law (that which is written, known and knowable) and normative law (what one thinks it should be — beliefs). Natural law is in the eye of the beholder. It is not written, other than by those who have their own “normative” idea of what it should be (as if they can imagine God speaking to man eons ago and saying “Son, you naturally have these rights. Go out and procreate and wreak havoc all over the earth.” 🙂 ).

          The “system” is the written law and the Constitution, within which the laws, as written, must conform (theoretically). Judges (theoretically), must make decisions within those constraints. In making such decisions, the past body of judicial decisions (common law) are supposed to serve as precedents, that guide and inform decisions on any particular case involving similar matter (although extraneous cases are often pulled in too).

          Appeals to so-called “natural rights”, therefore — as intellectually appealing as they may appear when they support one’s position — are somewhat beyond the bounds of what the courts should be basing its decisions upon. These are “normative” (as per above), but unfortunately common, and are one cause of judicial activism.

          This really isn’t desirable, and to get back to the start of the thread and the article, was not something Kagan should have addressed under any circumstances (although her statement is almost certainly a load of BS, just as is most of everything all recent SCOTUS nominees is when responding to anything touching on their personal views. All of them have personal views, and this bias is clearly reflected in the countless decisions that ignore precedent and I could go on, but ….)


  45. What do you call a black man with an undergrad from Princeton, a masters from Yale, and a doctorate from Harvard?

    A well educated man, except in the areas of jurisprudence and economics where Ivy League doctrine is abysmal.

    1. If you’re trying to make a serious comment here, please leave race out of it. I assume you are referring to Obama. I have a boatful of disagreements with the man on policy, legislation, economics, legal theory and so on. But none of my disagreements have anything to do with the fact that he is a black man.

      Do not go there – you only diminish yourself in the eyes of everyone else here.

      1. Libertyguy, sanctimony has no proper place on a libertarian board. If you don’t like the company, you can politely bow out. Not only that, you are making many assumptions there that are beyond your acumen.

        It was a rift on Malcom X’s most infamous joke which many here are familiar. I changed only the punchline to reflect current circumstances where we do indeed have a black president who is embarrassingly unlearned in the areas I mentioned for the reason I mentioned.

        If you don’t like topical, well, cram it up your ass. I’m here until Welch says otherwise.

      2. And, by assuming the worst in me, you have earned yourself an enemy, son.

      3. I mean, that got your dainty little panties in a wad you are not ready for this board.

        1. You sure do take offense easily. I read and got your Malcolm X reference. But many readers, not getting the reference, might take you to be a simple racist and ignore all the good things you have to share.

          I did not assume the worst in you. I only offered a suggestion and meant no insult.

          1. Okay, scratch that middle post, the enemy thing, even that was an allusion tended for humor, couldn’t help being allusive if I tried, but it was still a stupid thing to say.

            I pretty much avoid lefty boards and lefty company because they are always looking for an opportunity to jump down your throat for the purposes of attaining the moral high ground, and not just for the occasions that call for rebuke.

  46. confers: Etymology: Latin “conferre”= to bring together, from “com- + ferre” = to carry.

    1. Etymologies are nice and sometimes useful, but what we are interested in here are Definitions. The definition of ‘confer’ is:

      1) To bestow from or as if from a position of superiority
      2) to give (as a property or characteristic) to someone or something

      It is absolutely wrong to say that our Government ‘confers’ rights on the people. Instead, it is “We The People” who confer power on our Government.

      1. Which peoPle would that have been in 1789? Perhaps 10% OF THE POPULATION WHO WERE WHITE, MALE, ADULTS WHO OWNED PROPERTY. Think before you speak, dude. The “We the people” is a bunch of rhetorical nonsense — then and now — used as a palatable patina to cloak other designs.


        1. Medical Marijuana is down blog.

        2. So sorry to see you feel that way. A lot of blood was split so “We The People” could have the opportunity to govern ourselves. That’s why America was referred to early on as “The Great Experiment”. Our Founders believed that individuals could govern themselves and did not need an aristocracy to do so for them.

          1. If people could govern themselves, then we wouldn’t need a government that does it for them 🙂


  47. “Natural Rights” do not exist outside of human agency and are are, essentially, shorthand for “everyone agrees that this justification for an action is widely applicable when another feels harmed by your action.”

    It is in this sense that “rights” are granted by societies because the specific list of things everyone agrees with will vary at the margins.

    1. I disagree. Rights are NOT granted by societies. They are pre-existing. Societies protect/secure rights. They declare them. They do not create or grant them.

      1. Stop and think about how collosally illogical and counterfactual this proposition is in the context of the second amendment. Guns were invented by man (hardly god-given at birth, like the ability to procreate). Ergo, the “right to bear arms” is like-wise a man made invention :-), not natural in any sense.


        1. Guns were invented by man ….Ergo, the “right to bear arms” is like-wise a man made invention :-), not natural in any sense.

          “Arms” is merely a term meaning “weapons”. This could be as simple as a wooden stick or a rock, which were around long before any men (or women). The ‘right to bear arms’ is an extension of a right to self-defense (which many apparently feel is a bad thing).

          1. That is sophistic (not to be confused with sophisticated). We all know that we are talking about guns, not my right to take a swing back in self-defense at a guy who takes a swing at me. No one has ever questioned that. Clearly that was the intent of the 2nd, as well, otherwise putting that right in the context of a “well ordered militia” is meaningless.

          2. Actually “bear arms” has a specific historical meaning, and was used in a military context. The amendment is about the right of states to defend themselves, not from the federal government, but from things that threaten their security. It’s not even about self-defense, except of the states.

            1. Wow, I haven’t had to pull this one out for a long time. I’d also like to note, that Elena Kagen disagrees with you. But that’s neither here nor there:

              When the British government began to increase its military presence in the colonies in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. One colonial newspaper argued that it was impossible to complain that this act was illegal since they were “British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights” while another argued that this “is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense”. 29 The newspaper cited Blackstone’s commentaries on the laws of England, which had listed the “having and using arms for self preservation and defense” among the “absolute rights of individuals.” The colonists felt they had an absolute right at common law to own firearms.

              The historical meaning is that we, the people as individuals have a right to bear arms, all stemming from English common law “shote owt of a howse for the lawefull defens of the same”.

              1. Much of this discussion weaves a tapestry from what were once three distinct “schools” of jurisprudence: natural law (very ancient origins), positive law (ancient and fairly recent), and historical jurisprudence (pioneered during the past half century).

                Together, when illuminated with cybernetic theory and similar modern concepts, these three approaches compose an “integrative jurisprudence” that is worth developing further. Paul’s posting, above, is a good example of this.

                Google “Integrative Jurisprudence” for further illumination of this enterprise.

            2. Sometimes courts went farther. When in 1837, Georgia totally banned the sale of pistols (excepting the larger pistols “known and used as horsemen’s pistols” ) and other weapons, the Georgia Supreme Court in Nunn v. State held the statute unconstitutional under the Second Amendment to the federal Constitution. The court held that the Bill of Rights protected natural rights which were fully as capable of infringement by states as by the federal government and that the Second Amendment provided “the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state.”

            3. That the National Guard is not the “Militia” referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to “raise and support armies” and not its power to “Provide for the organizing, arming and disciplining the Militia”. 65 This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only “to execute the laws of the Union, suppress insurrections and repel invasions.” The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec. 311(a).

              The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

        2. You must be kidding. The right to self-defense is a Natural Right. The 2nd Amendment is a declaration of that Right, using the terminology of that time.

          You sound like the guy who would say, “people at the Founding only had single-shot muskets, so those are the only ‘arms’ we have a right to. Other things like handguns, we don’t”.

          Indeed, guns were invented by man, but the invention of the gun did not create the right to defend oneself. The right is pre-existing, the sword, the bow, the musket, the handgun all came later and are simply manifestations of that right.

          The ‘right to bear arms’ is NOT a man made invention.

          1. “But your honor, he threatened to kill me if I didn’t stop fucking his wife so I had to drive 50 miles and slit his throat. It was my natural right of self-defense”.

            Would that work?

            1. NOW you’re on to a good question. You have a Right (to defend yourself). How and when do you get to use this Right?

              In your example, you suggest that you can defend yourself by (a) using deadly force (b) in the face of a verbal threat.

              This is where our legislative bodies come into play. Our REPRESENTATIVES debate these questions and decide (on our behalf) where the lines are drawn. That is, they create LAWS. Here, the law says, no, this is not a legitimate use of your personal Rights. If you kill someone because they threatened you verbally, you will have broken the law.

              This is how I understand, albeit it poorly since I’m not a lawyer, the difference between Rights and Law.

              I do not claim to be an expert here and would enjoy hearing your thoughts.

              1. We agree. Laws define how we view perceived rights.

                In fact, a law may negate a right (my right to smoke weed I grow). So rights are a subject for freshman philosophy.

          2. Of course it is. All arm’s are, in some, sense man made (other than, like, a rock) — other than the arms God gave you. 🙂

            Equally facetiously (just having fun here), the words were made by man, therefore the expression of that right is man made, and so too the rights themselves. Cavemen may have beaten each other over the head with dinosaur bones (assuming all the world is only, like 6,000 years old 🙂 ) but there is no record that they had any conception of rights (to say nothing of guns).


      2. So where were these rights lurking during the 99% of human history in which nobody enjoyed them?

        1. Bang on! Or even today in a great many countries with maybe a majority of the world’s population

        2. Man existed long before the state.

        3. Then why do we invade countries that violate these rights, when the countries we’re invading have no documents detailing these rights for their own people?



        4. I don’t know, Tony. Where was Calculus before Newton (a Rich White Privileged Male) discovered its principles? Where was Trigonometry before Archimedes sauntered along? The fact that recognition of rights isn’t universal or were not always recognized means nothing, you relativistic dildo.

          1. Negative rights are based on self-ownership. Positive rights aren’t really based on anything, and are merely an arbitrary collocation of claims on others’ property. Leftists know this, and in the post Marxist and post-socialist world, have obviated the existence of negative rights because they know how inferior and time-sensitive positive rights are.

            1. I own my body. Call me a slut and degenerate (or just a true lover of freedom), but why should the state tell me what to do with it, whether it be getting an abortion, suicide, prostitution.


              1. It shouldn’t, if there is no inherent violation of another’s sovereign rights. In the case of suicide and prostitution, there is no such tension. In the case of abortion, it depends on whether one thinks that a fetus is the equivalent of a newborn or not. If not, then there is no justification for such a restriction. If there is, then there are grounds for restrictions and reprisal, as there are for murder and infanticide.

                This position hinges, therefore, on the personhood of a fetus.

                1. No sir, that position hinges entirely on your personal (and probably religiously based) beliefs. Period. You said so yourself — ?t depends on whether one thinks…` Beliefs, beliefs, beliefs. Facts never penetrate the world inhabited by our beliefs.

                  Case closed, dude. It`s a sham.


    2. Shit, Neu, you’re still pushing this line of bullshit? Climb down from your ivory tower.

  48. Gotta go. You guys all enjoy your Independence Day weekend!!

  49. Thanks for writing about this. The exchange between Coburn & Kagan on whether the right of self-defense is natural & inalienable or conferred by government and also whether the government can compel the purchase of a mandated product be it healthy food or insurance was the most telling of all Solicitor General Elena Kagan’s testimony whether she intended it or not. That she could feign disinterest in the concept of natural rights was shocking. Perhaps she doesn’t actually comprehend the “old-fashioned” concept that fueled our revolution. If she does (and doesn’t support natural rights) that would make her and those who think like her post-date counter-revolutionaries.

  50. I wish they would have only proffered one amendment:
    The citizens retain all of the rights that the creator endowed upon them except those that are overruled by a constitutional amendment.

  51. It is amazing how many of you have all bought into the fabrication that is the founding American myth. You really need to do some critical reading and not buy into all the pablum served up in your high schools.

    The direction this country has taken should not be surprising, given its founding. It was founded by a corporate elite (such as it was at the time) and continues to be driven forward to its destruction by these same elites.

    America had no aristocracy is part of the myth. Maybe not in the technical sense. But look at who all the founders were — old stock (for the newness of the country), wealthy landowners with slaves (even Jefferson, who was intellectually opposed to slavery, but kind of had to fit in to keep his station and prospects in life), significant commercial interests, etc… The Boston Tea Party and what followed was not driven from below by “We the People” as the fictional accounts you rely upon recount, but by the wealthiest segments of society whose intersts were threaqtened by England’s mercantilist policies which threatened their interests.

    It’s fine to be proud of your country, and the American story is truly great, but for goodness sakes, don’t drink the Kool-Aid! 🙂 It just makes you “useful idiots”, donkeys for the muledriver.


    1. What other country has such a diverse lot of successful people? American Exceptionalism is a reality that statists have to go to great pains to deny. We may have been founded by rich people but the system they set up is designed to let anyone make it big.

      1. Thank you, James.

        I think that says it all

        Point proven.

        I am very far, far, away from being a statist. And if you really believe what you say, then bray, baby, bray!

        Enjoy the Kool-Aid.


        1. Rarely do I get trolled but any port in a storm, right?


    2. weaveroflIES_2000

      At some point you may want to consider watching a Beck show (Fridays would be good) then you would have some factual and patriotic information in your brain.

      One other point. The clock is ticking and this is America, not europe.

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

    I wish Kagan had answered honestly that Alito had made a hash of the second amendment by legislating from the bench.

    After all, personal “arms” include shoulder surface-to-air missiles, suitcase nukes, claymores, automatic pistols, long knives, and box cutters, none of which Coburn would allow carried into the hearing room where Coburn was asking Kagan the question about a natural right to nuclear weapons.

  53. Anyone who supports this cunt is evil.

  54. She will not defend the Constitution.

    Just like O will not defend the Constitution or this country.

    He just loves illegals more than the people paying the bills.

    We won’t pay the bills any longer. You have put too many people out of work to be able to pay anything.

    O is such a fool.

  55. In other words, if you were to give her truth serum, she would say that your rights come from legislators and judges not a higher power. It is despicable that people with this frame of mind are allowed to be justices on the Supreme Court.

  56. Not the natural rights bs again! It would do libertarians a favor not to embrace such silly mysticism.
    Never mind the Declaration and the Constitution were written for completely different purposes by completely different people.

    1. Not only is this an ignorant statement but is the kind of thinking that dictators and tyrants love.

      1. Not only is this an ignorant statement but it is exactly the kind of thinking that an idiot would take part of.

        If a country has fallen into a monarchy, then no amount of protesting concerning Natural Rights will change what the one man shows desires except for the fear of hurting his own self interest.

        So, if there is a dictator or tyrant, they would do whatever they wanted as long as those actions didn’t destroy future possibilities to continue it.

        Tyrants can dominate you regardless of whether you believe humans should be able to blog on the internet or not.

        1. I see that the incoherenat pills are being taken profusely today. When you have a thought that makes sense let us know.

  57. She doesn’t believe in natural rights? what?*%$!!

    She does believe in socialism though, ardently, since college. But in every budding socialist there’s a full blown Marxist screaming to be unleashed.

    Strange how a “liberal” president, surrounds himself with sign and flag waving Marxists, socialists and Communists and the media doesn’t say a word. Not one word.

    Strange how he does nothing but implement Marxist programs hand over fist, with the help of congress and everyone, especially the media, think it’s wonderful.

    There’s only two ways to go here folks and we are rapidly approaching only one way and they, know it.

  58. ELENA KAGAN: “Sen. Specter, it’s a little bit difficult to take off the advocate’s hat and put on the judge’s hat, and one of the things that I think is important is that I appreciate the difference between the two, and I have been an advocate with respect to Citizens United, and that’s the way I came to the case. It’s the way I approached the case. I hope that I did a good and effective job in it, and I believed what I was saying, but it’s a different role and it’s a different thought process, than the role and the thought process that one would use as a judge.”

    A “different role” she hasn’t played before getting scoring a lifetime position.? I suppose she will have plenty of time to learn. That is a bit different from voting in an inexperienced politician that can be voted out or term limited.

    People may be tempted to say “But Scalia had no experience as a judge either”
    Does that make you feel better about this?
    Scalia likes her credentials:
    “Currently, there is nobody on the Court who has not served as a judge –indeed, as a federal judge — all nine of us,” he continued. “. . . I am happy to see that this latest nominee is not a federal judge ? and not a judge at all.”

    Sen. Dianne Feinstein, D-Calif., said Kagan had a “sterling reputation” and was “unquestionably qualified” to serve on the Supreme Court, calling her lack of judicial experience “refreshing.”

    That’s it. Where do I apply for a similar lifelong position that I have no experience performing? When they say “But you have no experience.”, I’ll say “Yup. Refreshing. Isn’t it?”

    I guess I still have the notion that the ultimate term unlimited judging positions should be filled by folks with judging experience and a related record.

    Otherwise, we have no choice but to “Hope” they have the skills.

  59. A fundamental flaw of these hearings is that the legislative branch by its very nature doesn’t want a judiciary member who will uphold fundamental rights. Congress wants as much leeway as possible to impose arbitrary new laws. So even if a particular congressman pounds a candidate to oblivion about a particular right, as long long as she says she will “uphold the law” (not natural rights) it is pure music for the rest because “the law” is enacted by congress itself. That Kagan woman is unfortunately saying exactly what the committee wants to hear.

  60. Regarding: “Coburn and Kagan on Natural Rights”

    “Jacob Sullum” Says: “Elena Kagan— won’t comment on an abstract subject such as natural rights, that people have by virtue of being people, regardless of what the law says
    because it is not relevant to how she would apply the Constitution”.
    “What would it cost Kagan to acknowledge as much”?

    ” Jacob Sullum” does not appear to be cognizant of the requirements for Supreme Court Justices demanded by Republicans: that of “Strict Constructionist’s” (Of the Constitution!)

    Elena Kagan gave the PERFECT reply to the question!
    Republicans ‘parrot’ the statement that “Justices are not supposed to allow their PERSONAL views effect their Court decisions”!

    Very likely had Kagan expressed a ‘PERSONAL VIEW’, objections would be made by the ‘Strict Constructionist” Republicans as to her proper qualifications!

    All of which was the point of Sen. Tom Coburn’s obvious fishing excursion!

    Jacob Sullum”—- NEEDS AN EDITOR!

  61. ——————–Our U S Supreme Court is Corrupt!

    Most of the present Justices of our U S Supreme Court are addicted to ‘religion’!
    Thus, they are under the influence of a “mythological entity”; and totally unable to
    rule fairly in any case that involves conflict with the tenets, teachings, edicts or
    prejudices associated with their “religious-dogma”!
    Further; their renunciation of rational, and critical thinking, in favor of reliance on a
    “Ghostly-Apparition” for guidance; deprives them of the the necessary reasoning
    powers required for fair and impartial judgement of all issues that are antithetical
    to theirs.
    Our U S Constitution’s First Amendment’s “no law respecting—religion” dictates
    or, implies a ‘total’ separation of “Church & State”!
    Therefore, rightfully; no Case before the “U S Supreme Court” should be tainted’
    by influences of people who live in a ‘fairytale world’ governed by a “Religion”!
    ——————Most everyone “interprets” the U S Constitution!
    But; U S Supreme Court Justices are ‘exactly’ ‘selected’ because of their ‘known’ personal
    views that coincide with those who want ‘their’ personal ‘interpretation’ of the ‘Constitution’
    adhered to like a ‘leech’ on a bloody body part!
    Literate ‘rational’ people use their minds to understand every word and it’s meaning to them
    personally; and, that includes all parts of the U S Constitution!
    It is about constraints and influences and ‘degrees’ of freedom, and the inalienable ‘rights’
    of all, including many who had few or no ‘rights’ when that Great Document was enacted!
    So! Despite what many believe; our U S Constitution has ‘proved’ to be a “Living Document”,
    the meaning of which is subject to contemporary “interpretation”!
    Unfortunately, the “religious right” represents the majority’s ‘bent’ of the present Justices of
    the U S Supreme Court!
    And, their collective ‘biased’ points of view determine the outcome of 99% of all cases
    before the U S Supreme court!

    ———————–An American tragedy!


  62. This has got to be the most hilarious “news” on the internet lately.

    Why must a Justice believe in Natural Rights? A Justice’s only job is to interpret the Constitution and decide when it is violated or not.

    As far as the idea of Natural Rights goes…what are they and how did they come to be? In a country of hundreds of religions, it would be insulting to say a “God” created them, or humans have them because of a soul. Additionally, it is insulting to parents of a mentally handicap human to say that rights are based on rationality. Furthermore, simply to say humans have Natural Rights because we are human seems ridiculous. The many Natural Rights arguements are illogical because it places the focus on the difference between humans and animals – rationality, spirituality, intelligence. But all of these can be, through polite discussion, proven wrong. Some chimps are more rational than a human, should it have more “rights”?

    Natural Rights are based off of a global concensus, nothing more. Believing that the preceed what the political authority has mandated is not thought out. For example, the arguement of right to life. I have a right to live, so if you try to kill me and you die in my act of self-defense, I am at no wrong. Most people would not find a fault with that idea. But what if those two people were on a life boat, with only a ration for on? Would killing the other person so that you could live be concidered a right to life?

    That kind of thinking concerning Natural Rights is serious problem in the world today. And for anyone who comments about how the banning of slavery has made our constitution more moral because it adheres to the notion of Natural Rights: slavery ought to have been banned because of the unnecessary suffering it produced, not because it was against someone’s Natural Rights. Besides, everyone knows the first action to ban slavery was political, not moral.

    Explain to me where these Natural Rights came from and also why Human’s are so privileged to enjoy them.

    1. Try reading the Declaration of Independence some time. Its the founding document of the United States of America. If you don’t like the USA, try living in CUBA.

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