Elena Kagan should use her confirmation hearings to defend the Constitution. All of it.

The law, lawyers, and the court.
June 8 2010 11:10 AM

What Kagan Should Say

Elena Kagan should use her confirmation hearings to defend the Constitution. All of it.

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One may celebrate or criticize these constitutional amendments, and one may support or oppose congressional efforts to exercise all of the powers granted to it by the Constitution. But to pretend these amendments do not exist, or do not have the force of law, is to promote lawlessness and to undermine our constitutional process. And one cannot simply write off the trend toward selectively reading the Constitution as political pandering. It is also a feature of the jurisprudence of the conservative majority on the Supreme Court, especially its most voluble spokesman, Justice Antonin Scalia.

To give just one example, consider the conservative justices' approach to the part of the 14th Amendment granting the federal government power to enforce, "by appropriate legislation," the rights of liberty and equality set forth in the amendment. This provision was intended, and understood, to grant Congress expansive powers, and there can be no doubt that its motivation was the infamous Dred Scott decision, where a conservative majority on the Supreme Court ruled that African-Americans could never be U.S. citizens. The drafters of the 14th Amendment did not trust the Supreme Court to protect minorities, so they granted to Congress broad enforcement powers.

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But this grant of power doesn't fit comfortably with the cramped worldviews of conservative justices, who would like to see the federal government's power limited. Or, to be more precise, they would see congressional power limited, while the court takes on the role of primary enforcer of the 14th Amendment. Under Justice Antonin Scalia's view of the 14th Amendment, Congress would have no power on its own to protect the rights guaranteed by the amendment itself, despite the explicit grant of enforcement power in the text of the 14th Amendment. Congress could do no more than serve as the handmaiden of the court. This might be nice for the court, but it is not what the Constitution provides. In short, this is emasculation, not interpretation.

For too long, those on the left have remained silent about these conservative flights of fancy. The reason is that progressives themselves have had a complicated relationship with the text and history of the Constitution. Rather than embrace the words and principles of the Constitutional text, progressives have danced around the idea of a "living" Constitution, one that changes if five justices agree. If that is one's perspective, it is hard to fault someone else for playing fast and loose with the Constitution. But this is not about embracing a "living" Constitution; this is about embracing the entire Constitution, as written.

If Kagan wants to be true to her 1995 article, she should embrace the text and principles of the Constitution—the whole Constitution—and explain what fidelity to the Constitution entails. And once on the court, Kagan should call out conservatives for ignoring provisions that do not fit their worldview. To be sure, the Constitution, properly interpreted, will not provide support for all liberal causes and nothing but liberal causes. But it doesn't provide support solely for right-wing fantasies, either, and Obama's nominees to the court should make that clear. The peddling of a selectively edited Constitution as patriotic and principled should be shown for what it is: a disgrace to our real Constitution.

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Doug Kendall is president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to the progressive promise of the Constitution's text and history.

Jim Ryan is the William L.. Matheson & Robert M. Morgenthau distinguished professor of law at the University of Virginia School of Law.

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