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Opinion

Elena Kagan: Could she defend the Constitution's purpose?

Elena Kagan has shown a troubling willingness to defer to the tyranny of the majority, instead of upholding individual rights.

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How might a different judge proceed – one who regards it as her duty to interpret each clause in relation to the individual rights to life, liberty, property, and the pursuit of happiness?

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Different ideas about the Commerce Clause

Suppose she were asked to interpret the oft-disputed provision that grants Congress authority to “regulate Commerce ... among the several States.” Such a judge would recognize that the Commerce Clause empowered Congress to protect the rights of traders, by preventing states from imposing tariffs and other restrictions on the free movement of goods across state lines.

Such a judge, applying the Commerce Clause to current cases, would ask whether any proposed government action itself violates an individual’s rights. And such a judge would stand ready to strike down laws that exceed the government’s granted authority.

Kagan, by contrast, would see the Commerce Clause as authorizing nearly total control by the majority over the way every individual earns a living, spends money, and trades with others – his rights be damned. She would have no trouble finding, for example, that the majority, through its elected representatives in Congress, is authorized to mandate the individual purchase of health insurance, as Obamacare attempts to do. After all, insurance is part of commerce, isn’t it?

Nor would she fail to find authority for the government to bully banks into joining bailout schemes, launch massive “stimulus” spending of taxpayer money, and cap carbon emissions. If it’s commerce, the majority can control it. During her testimony, Kagan even lectured Sen. Coburn on the majority’s constitutional right to (hypothetically) require that each individual eat three vegetables a day – allowing herself only an inconsequential personal opinion that such a dictatorial law would be “dumb.”

This is the judicial philosophy that has enabled government to expand at an accelerating pace for more than a century – without judicial impediment, and without any end in sight.

If the Senate confirms her nomination, Elena Kagan will surely recite the words of her oath accurately, but her testimony shows she has no intention of supporting and defending the true Constitution.

Thomas A. Bowden is an analyst at the Ayn Rand Center for Individual Rights. Mr. Bowden is a former lawyer and law school instructor who practiced for 20 years in Baltimore, Md. The Ayn Rand Center is a division of the Ayn Rand Institute and promotes the philosophy of Ayn Rand, author of “Atlas Shrugged” and “The Fountainhead.”

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