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Strange Brew: The Tea Party, Elena Kagan, and the Declaration of Independence

July 28, 2010

This is the eighth installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.
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by David Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center

A rather surprising flash point in the confirmation debate over Supreme Court nominee Elena Kagan has been the argument by Tea Party members and allies that Kagan should not be confirmed because of Kagan’s testimony that her job as a Justice would be to “enforce the Constitution and the laws,” and that she doesn’t have a view about the protection of natural rights “independent of the Constitution.”  Tea-partiers are up in arms because Kagan limited herself to the protections set out in the Constitution, and did not embrace the Declaration of Independence as a source of “God-given inalienable rights” as Republican Senators Tom Coburn and Charles Grassley repeatedly pressed her to.  According to Rush Limbaugh, “She is basically just throwing the whole concept of natural law down the toilet and flushing it.  She is throwing the Declaration of Independence down the toilet.”   A whole host of Tea Party-affiliated websites parrot the identical claim – Kagan cannot be trusted to protect the liberties of Americans because of her “opposition” to the Declaration.

But in fact, Kagan’s basic point is unimpeachable.  A critical aspect of the job of a Supreme Court Justice is to decide cases brought under the Constitution, and that means looking to the Constitution, and not to the Declaration of Independence or natural law.  Justice Scalia and Justice Thomas have both made identical points, and no one has suggested this makes them unfit as Justices.  For example, Justice Scalia wrote in a 2000 dissenting opinion that “The Declaration of Independence . . . is not a legal prescription conferring powers on the courts,” while Justice Thomas told the Judiciary Committee in his 1991 confirmation hearing that he “did not see a role for the use of natural law in constitutional adjudication.”  So Kagan’s testimony is nothing new.

The Tea Party’s attack not only misses this basic difference between the Declaration and the Constitution – the latter is binding law, the former is not – but it also ignores the very critical fact that core promises of the Declaration have actually been written into the Constitution.  Indeed, no part of the Constitution’s text better reflects the Declaration than does the Fourteenth Amendment, which was added to the Constitution after the Civil War to make good on Abraham Lincoln’s promise at Gettysburg “that this nation shall have a new birth of freedom.”  In 1866, Schuyler Colfax, the Speaker of the House of Representatives, called the Fourteenth Amendment “the gem of the Constitution . . . because it is the Declaration of Independence placed immutably and forever in our Constitution.”  While the Founders’ Constitution and the Bill of Rights, added in 1791, explicitly protected a number of substantive fundamental rights, and the Ninth Amendment made clear that the Constitution also secured other, unenumerated, substantive fundamental rights, it was only with the ratification of the Fourteenth Amendment that the Declaration’s twin promises of liberty and equality were written into our Nation’s foundational document, and redeemed from the sin of slavery.

Kagan’s testimony shows that she understands this text and history, and is committed to enforcing both the Constitution’s “substantive protection of liberty,” and the “fundamental American constitutional value” of “equality under law.”   While some conservatives on the Senate Judiciary Committee used the hearing to question the jurisprudence of  Thurgood Marshall – Kagan’s former boss and the lawyer most responsible for breathing life into the Constitution’s Equal Protection Clause – Kagan’s testimony made clear that the Fourteenth Amendment should be interpreted broadly to give effect to the expansive language its framers used to guarantee liberty and equality for all.  There’s no better way to honor the men and women who fought to write the central principles of the Declaration of Independence into the Constitution.