Will Kagan help unchain the beast?

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By John Barnhart

    Back in 1788, delegates from the 13 original states gathered in Philadelphia to revise the Articles of Confederation, which had governed the United States since they declared themselves independent from Great Britain. Instead of revising this document, they wrote a constitution for a new government, creating a federal republic.

    The idea of a strong central government gave these guys the willies. That’s why they were careful to chain this beast with a constitution that defined what the new government could do. The idea was that any power not specifically granted the new government remained with the states or the people. Not all states were completely satisfied with the new constitution because it lacked a bill of rights. They ratified it on the grounds that the first order of the new government’s business would be to add a bill of rights via the constitutional amendment process. The first 10 amendments to the Constitution became that bill of rights with the 10th specifying the original intent, that any power not granted the federal government remained with the states and the people.

    One of the things these men did in Philadelphia, back in 1788, was to make it possible to modify the Constitution, but to make this process cumbersome. It requires the backers of an amendment to develop a broad consensus for a change in order to make it happen. After all, the Constitution was to be the chain that would keep the federal government under control and guard our liberty.

    The Constitution, as adopted, did have a few flaws and one was that it contained no mechanism for ruling on the constitutionality of laws. The Supreme Court quickly assumed that role. Nobody challenged that and the Supreme Court has retained that power to this day. This is why the way the judges who compose this court view the Constitution is so important.

    This is why I consider liberal supreme court judges to be a threat to liberty. Liberal judges have a tendency to weaken the chains that restrain government through creative interpretations of the Constitution. We saw an example of that in the Kelo vs New London decision five years ago. In a 5-4 decision, with Anthony Kennedy joining the court’s four liberal judges,  the court allowed New London to take a woman’s house, under eminent domain, and give it to a private developer as part of an economic development plan.

    This was done via a creative interpretation of “public use” in the Fifth Amendment, a part of the Bill of Rights intended to protect property rights. The result is that a government can take your property and give it to somebody else who the government feels will put it to a better economic use. A number of states enacted laws to strengthen individual property rights, but Kelo vs New London shows what liberal judges will do when your rights conflict with what the government wants to do.

    The Senate is now considering President Barack Obama’s nomination of Elena Kagan to fill a Supreme Court vacancy. Kagan is a stealth nominee. She has never been a judge, so it’s difficult to tell what she is likely to do. This makes liberals uneasy who, no doubt, recall that David Souter, nominated by Bush the Elder, was also a stealth nominee whose record gave few clues about how he would vote on Constitutional issues. Souter turned out to be a liberal.

    I’m sure liberals don’t have to worry. President Obama would not have nominated Kagan if he was not sure that she is a liberal like himself. Her position as solicitor general has given him plenty of opportunity to be certain of this.

    And, that is why Elena Kagan frightens me.