Debating liberty at the Kagan hearings

Elena Kagan's confirmation hearings are set to begin June 28. It will be tempting at that time for some to reflect sadly on the truth that elections have consequences, and that the president should have his pick for the high court if she is a credible choice. In other words, that could be the day we yawn and slouch a little further into the gentle rocking of European Neverland and the enlightened playground supervision of administrative overlords. Or it could be the day we remember that it is not this or that policy position that is at stake in these hearings, but the rule of law itself, and that we rise nobly to its defense. What is at stake is our liberty under law, i.e., freedom from arbitrary government.

Carrie Severino sounds the right trumpet call at the Judicial Crisis Network blog:

"Elena Kagan's answers to the Judiciary Committee Questionnaire were made public last night, along with copies of her Princeton and Oxford theses. This is the first view most people are getting of her Oxford thesis, and its theoretical assumptions suggest an approach to law that is decidedly outside the judicial mainstream. At root, Kagan presents judicial reasoning as a cynical game of trying to find legal fig leaves to cover what are fundamentally raw policy preferences or gut instinct. This is the antithesis of the rule of law."

Kagan's progressive tradition of law and politics (and in that tradition the two are the same) stands opposite not only the conservative position of our day, but also the founding principles of our country, the principles inherent in our Constitution itself.

Claremont McKenna College professor Charles Kesler gives us a helpful description of the difference between progressive and traditional American understandings of liberty in its relation to government in National Review:

"For the Framers, rights were attributes of individual human beings who had been endowed with them by nature and nature's God. The same government needed to secure these rights could possibly threaten them, so a constant vigilance was called for to keep government limited to its just powers. For contemporary liberals, rights reflect society's stage of evolution and become real only when they are actualized, i.e., granted and enforced by government. Rights are therefore government-friendly. Indeed, after a certain point of social evolution, the more power given to government, the more rights it can and will give to the people. Far from checking, limiting, and channeling government powers, a proper constitution should therefore liberate them. Only from Big Government come entitlement rights, ethnic and racial preferences, and the newfangled 'identity' rights without which liberty would be meaningless. The tea party is inherently reactionary, liberals believe, because it doesn't grasp that Big Government, far from being a threat to liberty, is freedom's greatest achievement."

Ronald Reagan is well known for the theme he struck in his first inaugural address, saying, "In this present crisis, government is not the solution to our problem; government is the problem." The words "in this present crisis" are important qualifiers. Government is good. Our founders believed so, or they would not have given us one. Anyone in government must think so or they would not have sought election to public office.

But government is a limited good, and so only limited government can be good. James Madison, in Federalist Paper No. 51, gave classic expression to what is called "the political problem" when he wrote, "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." Or, as professor Kesler puts it, "The same government needed to secure these rights could possibly threaten them, so a constant vigilance was called for to keep government limited to its just powers." Progressives like Kagan simply deny there is a problem. The problem, they believe, is not government, but only most governments, not progressive governments that are by definition on the side of the people. But that's the sort of reasoning that justified a one party totalitarian state in the Soviet Union.

Our government's vast overreach in response to the financial crisis of 2008 and other national problems, both real and perceived, appear to be occasioning a healthy national debate in the lead-up to the 2010 elections over the proper role of government and the meaning of the Constitution. What is federalism? What is the rule of law, even of a fundamental law like the Constitution? What is limited government, and what is on the other side of it---self-destructive and oppressive individualism, or civil society and self-government? The Kagan confirmation hearings can be a convenient and entirely appropriate venue for publicizing that debate. Confirmation hearings can be rude affairs, but this one could turn into a tea party.