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.

Elena Kagan. Click image to expand.
Elena Kagan 

In 1995, Elena Kagan wrote a law review article criticizing the Senate judiciary committee's confirmation hearings for their air of "vacuity and farce," raising hopes that Kagan will talk openly at her own hearings. Kagan cannot, and should not, discuss cases or issues likely to come before the Supreme Court. But she can and should talk about the Constitution itself and her views about judicial review.

We live in an era thick with conservative nostalgia for the "original" Constitution and the ideas of our founding, even when those ideas have been repudiated or modified by subsequent constitutional amendments. Kagan would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution—all of it. If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.

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Just for example, President Obama has repeatedly condemned the conservative "judicial activism" of the court under Chief Justice John Roberts, most notably after last winter's Citizens United v. FEC, in which the court held that corporations have the same right to spend on elections as individual Americans. Indeed, in introducing Kagan as his nominee, Obama cited Solicitor General Kagan's argument to the court in that case as a reason to support her nomination. Kagan won't be able to discuss the nuances and ramifications of the ruling—which are sure to be before the Supreme Court again—but she should find an opportunity to note that the Constitution was ratified to protect "we the people" and never mentions corporations.

More importantly, Kagan should take the opportunity provided by this week-long constitutional seminar to chronicle the arc of our constitutional progress and make it clear that she will faithfully adhere to the whole Constitution, including the amendments passed over the last 220 years. The amendments passed since the founding era have been glossed over a lot lately, at the Tea Parties, in the states, and even at the Supreme Court, where the conservative "originalists" seem to view what was originally drafted by the framing generation as better, and more legitimate law, than the changes made since. This view is absurd and should be forcefully rejected by Kagan. Perhaps she could follow Chief Justice Roberts' umpire analogy, in which he famously likened judges to umpires calling balls and strikes. No one would claim that modern umpires have the power to enforce the "original" rules of baseball, even if those rules have been changed. The same is true of justices enforcing the Constitution.

The very first Republican National Committee press release on Kagan asked pointedly whether she still believed the original Constitution was "defective," unaware or unconcerned with the fact that the main defect Kagan was referring to in her tribute to her former boss Justice Thurgood Marshall was the original Constitution's perpetuation of slavery. A defect indeed, which was happily corrected by the 13th Amendment. If Kagan could use her hearings to explain that the Constitution has changed over time not with the whim of a justice but by the will of the people, she could provide a much-needed refresher course on constitutional history.

This historical near-sightedness is not limited to the 13th Amendment. In Virginia, Gov. Bob McDonnell recently signed legislation that attempts to nullify federal health care legislation in his state. State efforts to nullify federal law are not only flatly prohibited by the Constitution's Supremacy Clause but represent a refusal—like resistance following Brown v. Board of Education—to appreciate the lessons of the Civil War and the Reconstruction Amendments that followed. In Kentucky, Rand Paul followed his victory in the Republican Senate primary last month by arguing that the federal government lacked the authority to outlaw discrimination in hotels and restaurants under the Civil Rights Act of 1964. In Utah, Tim Bridgewater, the candidate who helped defeat Sen. Bob Bennett in the Utah Republican Senate primary, is advocating a return to the system of government created by the Founding Fathers, with no mention of the fact that this system has been fundamentally altered by subsequent constitutional amendments. Bridgewater suggested in a recent opinion piece in the Washington Post that "individuals nationwide are looking closely at the documents that led to and came out of our founding and comparing them to what they see around them" and seeing a disconnect.

Well, yes, they are finding a disconnect, not simply because the world has changed dramatically since 1789, but also because the Constitution itself has changed, the result of generations of Americans' heroic efforts to make the original document even better. Constitutional amendments passed since 1800 have eradicated slavery and secured the franchise for every adult American. They have protected civil rights and made equality an essential constitutional value. And, importantly for our purposes today, they have significantly expanded the power and role of the federal government. Eight separate amendments expanded the enumerated powers of the federal government, giving vast new powers to the government to protect equality, civil rights, and voting rights and to raise funds through taxes on income. Other amendments, such as the 17th Amendment, which took the power of electing U.S. senators away from state legislators and gave it to the people by popular vote, structurally increased the power of the federal government, vis-à-vis the states.

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.

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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