Judicial Crisis Network: The Case Against Kagan

You can read a JCN opposition brief to the Kagan nomination, in PDF format, at this link.

Washington Times: Elena Kagan v The Bill of Rights

From today's Washington Times:

In short: Yes, Congress has the constitutional right to make you eat your fruits and veggies. Forget freedom; if the government chooses to be coercive, the government can coerce.

Ms. Kagan hemmed and hawed about whether the Constitution should be interpreted in the context of natural rights as described in the Declaration of Independence. Mr. Coburn asserted "that we have certain God-given, inalienable rights that aren't given in the Constitution, that they're ours, ours alone, and that the government doesn't give those to us." The best Ms. Kagan could do in reply was to provide a jumbled double-negative: "I'm not saying I do not believe that there are rights preexisting the Constitution and the laws, but ..."

Indeed, Ms. Kagan's record indicates that she doubts the Constitution serves preexisting rights. She has spoken of government "redistribut[ing] expression" and of "dol[ing] out" speech rights "as favors." On economics, she wrote, "corporate wealth derives from privileges bestowed on corporations by the government. ... Individual wealth also derives from government action."

Ms. Kagan seems to think the federal government is responsible for just about anything and has the power to dictate just about everything in the realm of speech or economics. It's not a set of beliefs fit for a Supreme Court justice.

Charles Crawford on US-Russian Spy Swap

From his blogoir:

Are we about to see a major 'spy swap'?

"Why waste time on all those tedious legal processes and prisons? We get our spies back, and so do you."

Hard for me at least to see why the Russians would want to do this unless the illegals/sleepers rounded up in the USA were likely to spill so many operational beans during their looming long years on trial and then in prison that it is worth Moscow eating great slabs of humble pie to end the agony asap.

Maybe the Americans likewise feel that in fact so many KGB/SVR beans have been spilled already that they can afford to be magnanimous.

However, look at the world from the point of view of the hapless Russian spies.

They have been living agreeable and comfortable lives in leafy US suburbs. Now they face abrupt repatriation to Russia, where they will be regarded as failures and losers for ever.

Plus they face sustained and stressful interrogations from the SVR as the Russian agencies try to find out where it all went wrong - and what they have confessed about Russian operations and methodology.

Gulp. Political asylum bid, anyone?

The more you look at it, the more this looks like a five-star triumph for the Americans in general and the FBI in particular.

Frank Gaffney: Kagan Koshered Shariah Compliant Finance at Harvard

From The Washington Times:

Worse yet, Dean Kagan had an even more direct connection to the Saudis' Shariah-recruitment efforts at Harvard. She personally officiated in 2003 over the establishment of an Islamic Finance Project at the law school. The project's purpose is to promote what is better known as Shariah-compliant finance (SCF) by enlisting in its service some of the nation's most promising law students.

Consequently, it is absolutely appropriate for senators to explore Ms. Kagan's attitude toward Shariah - an anti-constitutional, supremacist legal doctrine that is a threat not only to homosexuals, but also to our civil liberties and society more generally.

hariah-compliant finance dates back to the 1940s, when it was invented by leading figures in the Muslim Brotherhood. This international organization has as its stated mission "destroying Western civilization from within ... by its own miserable hand." SCF is designed to further these seditious purposes by: legitimating Shariah in non-Muslim societies; compelling non-Shariah-adherent Muslims to use SCF rather than conventional financial products (in particular, arrangements that involve charging or paying interest); and diverting funds through techniques known as "zakat" (tithing) and "purification" to support jihad. In fact, one of the driving forces behind the SCF industry, Qatari Sheik Yusuf al-Qaradawi, has called SCF-generated zakat "jihad with money."

Ms. Kagan's Islamic Finance Project also has played a prominent role in encouraging the U.S. government to endorse Shariah-compliant finance. Notably, a founding adviser to the project, Harvard professor Samuel Hays III, conducted a "seminar for the policy community" in November 2008. It was sponsored by a former Goldman-Sachs-executive-turned-assistant-treasury-secretary, Neel Kashkari, who at the time was responsible for the Troubled Asset Relief Program (TARP). The signal thus sent could not have been clearer, either to Mr. Kashkari's colleagues in government or to those in the financial sector: At a moment when the very viability of major banks and investing institutions critically depended on this individual's favor, it would be advisable to embrace Shariah-compliant finance.

USA Today reported that Kagan was paid by Goldman Sachs for her services:

WASHINGTON — A top prospect for the Supreme Court was a paid member of an advisory panel for the embattled investment firm Goldman Sachs, federal financial disclosures show.

Solicitor General Elena Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, according to the financial disclosures she filed when President Obama appointed her last year to her current post. Kagan served on the Goldman panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show.

A spokesman for Goldman Sachs did not respond to requests for comment Monday.

Radio Netherlands on Dutch World Cup Win

The Dutch broadcaster calls it Orange Madness. (Full disclosure, I'm rooting for Holland, too...)

John McCain Says "No" to Kagan Nomination

From USA Today:

McCain's reason: The restrictions Kagan put on military recruiters when she was dean at Harvard Law School. "She unmistakably discouraged Harvard students from considering a career in the military," writes the senator, a decorated Navy veteran who spent more than five years in a Vietnamese prison camp.

During her confirmation hearing, Kagan said she did so because she felt the military's "don't ask, don't tell" policy, which allows gays to serve only if they keep their sexual preferences secret. Kagan said that violated Harvard's anti-discrimination policy.

McCain isn't buying her argument, for reasons you can read in his column.

Sen. Johnny Isakson (R-GA) has joined McCain in opposition to Kagan.

Martin Schram: Journolist Scandal Damages Washington Post's Integrity

From Scripps News Service:

Weigel had previously also joined another blog, a debate-and-chat group called "Journolist" that was formed by another Post blogger, Ezra Klein. Its members were limited to liberals or leftish centrists -- conservatives were banned. There Weigel cut loose -- opining such frat-chat yuks as: Matt Drudge would do well to "set himself on fire," Rush Limbaugh should die of a heart attack and so on. (Apparently assuming remarks to lots of journalists would stay off the record (Mr. Weigel, meet a fellow humorist, Gen. McChrystal.) Weigel's wee-giggles were collected and outed in the conservative media. Weigel resigned from the Post; but that is not the point here. The integrity of The Washington Post is.

BTW, when I was working on the PBS issue, years ago, I was repeatedly told that it was impossible to classify journalists as "liberal" or "conservative." Furthermore, it was wrong to do so, because it could lead to blacklisting...

So, how come it apparently was OK for Journolist to classify reporters as "liberal" (or further left) and to blacklist those who were conservative? In other words, I'm still waiting for someone to explain why the 400 members of Journalist weren't practicing McCarthyism, themselves.

BTW, I'd wager Breitbart never gets his list of Journolist members, nor the archives of listserv. It would be the end of the career of the person who turned it over. That's worth more than 100K to any journalist who wants to work again.

They'd be blacklisted, and they know it.

NiceDeb: Republican Senators Taking Dive for Kagan

NiceDeb doesn't understand why Republicans don't stop the Kagan nomination.

It makes no sense. The woman has no judicial experience, she’s clearly a radical with a judicial philosophy hostile to the Constitution, she’s manipulated science to further her extreme position abortion, and worst of all she’s young and healthy, which means we’ll be dealing with her destructive views for the next 30 years….

And what are our Republican Senators doing? Rolling over and playing dead.

Maybe it has something to do with the $476 million she raised from fat cats for Harvard Law School? After seeing Republicans defend BP and Wall Street, I guess that could explain it...

UK CRU FOIA Secrecy Enabled Climategate Fraud

From The Guardian (UK) report on Muir Russell's investigation of the Climate Research Unit at the University of East Anglia:

The report is far from being a whitewash. And nor does it justify the claim of university vice-chancellor Sir Edward Action that it is a "complete exoneration". In particular it backs critics who see in the emails a widespread effort to suppress public knowledge about their activities and to sideline bloggers who want to access their data and do their own analysis.

Most seriously, it finds "evidence that emails might have been deleted in order to make them unavailable should a subsequent request be made for them [under Freedom of information law]". Yet, extraordinarily, it emerged during questioning that Muir Russell and his team never asked Jones or his colleagues whether they had actually done this.

Secrecy was the order of the day at CRU. "We find that there has been a consistent pattern of failing to display the proper degree of openness," says the report. That criticism applied not just to Jones and his team at CRU. It applied equally to the university itself, which may have been embarrassed to find itself in the dock as much as the scientists on whom it asked Sir Muir to sit in judgment.

The university "failed to recognise not only the significance of statutory requirements" -- FOI law in particular – and "also the risk to the reputation of the university and indeed the credibility of UK climate science" from the affair.

Kate O'Beirne: "I Would Vote No" on Kagan

The Washington editor of National Review votes "No." From NewsBusters:

KATE O'BEIRNE: I would vote no, and unlike Margaret because the fundamental reason I am voting no is because my deep respect for the Constitution. So I wouldn't even try to vote twice like Margaret. I would only vote once. And It is not because she is not qualified even though she hasn't been a judge. I don't think you have to had been a judge. She has enough of a background in federal and constitutional law. She certainly is an extremely likable person. But, it is wholly permissible for the Senate in their advise and consent role to see somebody as Elena Kagan, and everything in her background tells me this is the case, she is going to be a liberal on the bench. She is going to, I think, fall into the liberal mistake of wanting laws to reach certain results and go there whether or not the Constitution permits it.

Conservative Website Launches "Stop Kagan Campaign"

Joseph Farah's World Net Daily has announced a campaign to block Elena Kagan's Supreme Court nomination. Farah posted this protest letter (which he plans to deliver by FedEx to Senate offices):

Defeat the nomination of Elena Kagan to the U.S. Supreme Court by lobbying every member of the U.S. Senate. It's as easy as a click of the mouse. The "Stop Kagan Campaign" is designed to impress senators with a heavy volume of mail over a sustained period of time -- the kind of campaign generated by previous WND efforts. All messages are delivered by Fed Ex to ensure they get to their destination and for added impact.

Here's the letter that will be sent, individually addressed, to each senator above your name:

Dear Senator:

In a few months, the American people will have a chance to speak at the polls again. Almost every analyst and every public opinion survey suggests the electorate is angry about the direction of the country. I strongly urge you not to show contempt for the will of the people and the Constitution by confirming the Supreme Court nomination of Elena Kagan.

Kagan is not what Americans want and she is not what the country needs.

At a time when federal central control is strangling the American economy, she calls for more regulatory authority, not just in Washington, but for the president himself.

At a time when American security is facing internal and external threats and our nation is still engaged in two foreign wars simultaneously, she advocates banning military recruitment on campuses because of her compulsion to see open homosexual behavior flaunted in the ranks.

At a time when Americans have been stripped of their ability to write their own laws protecting the lives of the unborn, she advocates the creation of task forces to investigate and prosecute peaceful pro-life activities.

At a time when Americans are recognizing the unique blessings of their Constitution, she advocates the consideration of foreign laws in shaping Supreme Court rulings.

For all of these reasons and more we will surely learn about in the days ahead, please reject the nomination of Elena Kagan.

Sincerely,

Your Name Here.

There's also a Stop Kagan Facebook Page sponsored by Americans United for Life.

Barry Rubin on the Obama-Netanyahu Summit

(White House photo by Pete Souzs)
 From the Gloria Center (Israel) website (ht) Martin Peretz):

Continuing to freeze construction on settlements will give Netanyahu a domestic problem but he can hold his coalition together, if necessary by adjusting it. Parties are constrained from walking out of the government because if elections were to be held Netanyahu would win in a landslide partly at their expense.

Another thing Netanyahu wants is for Obama to escalate pressure on Iran regarding that country's nuclear weapons' drive. The new sanctions, thanks to Congress, are going to hurt Iran and undermine support for the regime there. Not enough, of course, to stop the program. Still, when Iran does get nuclear weapons, Israel will need the United States to take a strong stand in containing Tehran.

Does Israel's government trust Obama? Of course not. Israel's government and Israelis in general are under no illusions about Obama's view of their country, his willingness to battle revolutionary Islamists, or his general reliability and toughness.

For example, last October the Obama Administration, through the State Department, did endorse the "settlement bloc" commitment, but then appeared to have forgotten about it. The U.S. government also broke its promises over the settlement freeze (accepting Jerusalem's exclusion and then howling about it a few months later) and regarding the nonproliferation conference (pledging to oppose any reference to Israel's nuclear weapons and then going back on that point).

There is also clarity about the possibility of Obama turning to a much tougher stance on Israel after the congressional elections are over. Yet with a plummeting popularity at home and lots of domestic problems, perhaps Obama will have more on his mind than playing Middle East peacemaker.

The Palestinian Authority is so uneager for a peace agreement that anything said by Israel on the subject is most unlikely ever to be implemented. And it seems that the Obama Administration has at least some sense that it isn't going to get an Israel-Palestinian peace agreement so it doesn't want to look foolish in making this a high priority and then failing.

Thus, Israel's strategy is as follows: try very hard to get along with the administration, seek to keep it happy, and avoid confrontation without making any major irreversible concessions or taking serious risks. Have no illusions, but keep the U.S. government focused on Iran as much as possible.

The next Congress will be more likely to constrain the president and who knows what will happen in future. A building freeze might be ended on strong grounds the next time. It is quite possible that Iran, Syria, and other radical forces will so assault the United States and trample on its interests that Obama will be forced to alter course. And there's always the 2012 presidential election.

REASON Magazine: Kagan Would Ban Pamphlets

Jacob Sullum writes:

Kagan's comments on the question of whether the First Amendment allows Congress to ban books under the guise of campaign finance reform were no more reassuring:

What we did in the Citizens United case was to defend the statute as it was written, which applied to all electioneering materials, with the single exception of books, which we told the court were not the kind of classic electioneering materials that posed the concerns that Congress had found to be posed by all electioneering materials of a kind of classic kind. Books are different. Books—you know, nobody uses books in order to campaign.

That claim is more than a little dubious, given all the biographies, manifestos, and public policy books that candidates and their supporters have produced over the years. More to the point, the distinction that Kagan drew between books, which maybe cannot be banned, and "pamphlets," which definitely can, is constitutionally untenable. As Hatch put it, "Do you believe that the protection of the First Amendment should depend on such things as the stiffness of a cover, the presence of a binder, or the number of words on a page?"

Charles Crawford on David Horowitz on Christopher Hitchens

From Charles Crawford's Blogoir:

In my eccentric Left phase as a student I got very depressed by a popular book by a young David Horowitz, a prominent American Leftist who railed at great length (460 pages) against the iniquities of Amerika and its unforgiving anti-communist foreign policy machinations.

Not only was the USA surrounding the peace-loving USSR with military bases. It had corporations bent on world domination. Aaargh.

The book was called The Free World Colossus.

David Horowitz went on to fall out in a major way with his senior New Left friends, disillusioned and revolted by their lies, hypocrisy and casual violence.

He now keeps very busy tracking Leftist propaganda and trickiness in US universities and far beyond, with these days a special added focus on Left cosiness with Islamist extremism. All of which makes him a cult hate figure for campus radicals.

The interesting thing about Horowitz is is almost exhausting frankness about his former beliefs and why he had such a dramatic change of mind. He has written extensively on the subject, including on how his family life and personal relationships shaped his early Marxist politics. He pores over the way emotions and ideas play into each other. See his many works here at Amazon.

Which is why I commend this superb essay by him over at NRO, in which he tries to analyse the beliefs of Christopher Hitchens, another prolific eccentric belligerent militant atheist Leftist who in one way or the other has fallen out with many former comrades.

First, this is a beautifully written piece of work.

Second, it is generously done, on both the intellectual and human level.

Third, it is very smart as only a piece by someone who has brooded deeply on politics and life from most points of the political spectrum can be. It takes great events of our times and explores how political and private reactions to them run into all sorts of contradictions and hypocrisies.

Magnificent. Must-read if you are interested in ideas.

Pam Geller: 7 Republican Senators Can Block Kagan Without Filibuster

From Atlas Shrugs:

For any SCOTUS nominee to be moved out of the Senate Judiciary Committee for a vote in the full Senate, at least ONE member of the minority party on the committee must vote in the affirmative.

In other words, if all seven Republican Senators on the committee vote against Kagan's confirmation, then she will not be confirmed.

It's just that simple.

Please contact all seven Republican Senators on the Judiciary Committee (and especially Sen. Kyl) to let them know that you oppose Kagan's confirmation. (Much thanks to Kagan for the info)

If enough people contact these Senators, they will pay attention to us.

The fate of our country is in YOUR hands.

Here are the seven Senators to contact:

Graham, Lindsey - (R - SC)
290 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-5972
Web Form: http://lgraham.senate.gov/public/index.cfm?FuseAction=contact.emailsenatorgraham

Sessions, Jeff - (R - AL)
335 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-4124
Web Form: http://sessions.senate.gov/public/index.cfm?FuseAction=ConstituentServices.ContactMe

Hatch, Orrin G. - (R - UT)
104 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-5251
Web Form: http://hatch.senate.gov/public/index.cfm?FuseAction=Offices.Contact

Grassley, Chuck - (R - IA)
135 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-3744
Web Form: http://grassley.senate.gov/contact.cfm

Kyl, Jon - (R - AZ)
730 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-4521
Web Form: http://kyl.senate.gov/contact.cfm

Cornyn, John - (R - TX)
517 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-2934
Web Form: http://cornyn.senate.gov/public/index.cfm?p=ContactForm

Coburn, Tom - (R - OK)
172 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-5754
Web Form: http://coburn.senate.gov/public/?p=ContactForm

UPDATE: The Hotline website has posted a running "whip count" of votes on the Kagan nomination.

SF Chronicle: Elena Kagan's "Vapid, Hollow" Gesture

Debra J. Saunders writes:

But let's be clear about Kagan. She says she reveres the very people whom she sought to treat as second class, while she rubbed elbows with powerful Democrats (and Republicans) who pushed the policy she found to be unjust.

Then when the policy was bad for her career, she trumpeted the many ways that she worked to get around it - why recruitment even went up.

Think about it. This was the cause that the cautious Kagan embraced, she signed an amicus brief on the issue, she put Harvard Law School on the line - all for a vapid, hollow gesture. But if she wins a spot on the big bench, where she doesn't need to win votes or to persuade nonbelievers, it won't be a charade anymore.

Daniel Pipes: Stop Erasing History from the Internet!

From DanielPipes.org:

Here's a pet peeve: Through eight years of the two George W. Bush administrations, I linked hundreds of times to White House and Department of State documents, plus less frequently to other U.S. government departments and agencies. I made efforts to link to original documents (and not news articles, much less blogs) because, having earned a Ph.D. in history, I value primary sources.

I assumed during those years that the documents, being part of the U.S. government's permanent record, would remain available so long as the government and the internet were functioning – in other words, a long time.

I assumed wrong. On coming to office, the Obama administration in an instant removed thousands (millions?) of pages, abruptly making dead and useless all those links to the prior administration's work. Latterly I learned that the Bush administration pulled this same trick against its Clinton predecessor.

This appalls me both as a historian and as someone who writes on the internet. How could they do this? The government surely has copies of those files and pages (indeed, http://georgewbush-whitehouse.archives.gov/ appears to contain the complete contents of the Bush White House years); it should promptly reinstate them immediataely to their original URLs. (June 25, 2010)

Washington Examiner: Red-State Democrats Should Oppose Kagan

Here's why the Examiner says conserviate Democrats should oppose the Supreme Court nominee:

...she failed to dispel concerns on three constitutional issues that will doubtless come before the Court many times, on which Kagan is on the wrong side of the American people.

First, the scope of government power. Regarding the limits of federal power to regulate interstate commerce, Kagan refused to say whether a law requiring every American to eat three servings of vegetables a day would be unconstitutional.

That’s a shocking answer, given that any conservative (or even moderate) lawyer worth his salt (no pun intended) could quickly explain how such a law is beyond anything ever upheld by the High Court. This means she would vote to uphold the Obamacare individual mandate when it reaches the Court.

Her government-power views extend to free speech. Kagan essentially said she was just following orders when she argued last fall in the Citizens United case that the feds should be able to throw into prison for five years people from any group distributing pamphlets criticizing federal candidates within 60 days of an election.
So on one hand, government has unlimited power to tell you how to live your life. On the other, government can make it a felony for you to criticize its leaders during elections. Together, these make a mockery of the concept of limited government.

Second, national security. Kagan never explained away why she said it was “unfortunate” that a particular law would block foreign terrorists held by our military in places like Afghanistan’s Bagram Air Force Base from petitioning a civilian U.S. federal judge from ordering their release. That betrays an invasive view of judicial power to override national-security decisions and micromanage our military’s wartime efforts.

And third, Kagan opposes the Second Amendment right to own a gun. As I’ve previously written, she said she’s “not sympathetic” to those who argue that they have a right to a gun in their home for self-defense, she was immersed in Bill Clinton’s gun-control efforts, and she declined to file a brief supporting the Second Amendment in this year’s historic gun-rights case, McDonald v. Chicago.

Social Media is Good for You!

According to Clay Shirky, in a Guardian (UK) interview about his new book, Cognitive Surplus: Creativity and Generosity in a Connected Age(ht Charles Crawford):

His predictions for the fate of print media organisations have proved unnervingly accurate; 2009 would be a bloodbath for newspapers, he warned – and so it came to pass. Dozens of American newspapers closed last year, while several others, such as the Christian Science Monitor, moved their entire operation online. The business model of the traditional print newspaper, according to Shirky, is doomed; the monopoly on news it has enjoyed ever since the invention of the printing press has become an industrial dodo. Rupert Murdoch has just begun charging for online access to the Times – and Shirky is confident the experiment will fail.

"Everyone's waiting to see what will happen with the paywall – it's the big question. But I think it will underperform. On a purely financial calculation, I don't think the numbers add up." But then, interestingly, he goes on, "Here's what worries me about the paywall. When we talk about newspapers, we talk about them being critical for informing the public; we never say they're critical for informing their customers. We assume that the value of the news ramifies outwards from the readership to society as a whole. OK, I buy that. But what Murdoch is signing up to do is to prevent that value from escaping. He wants to only inform his customers, he doesn't want his stories to be shared and circulated widely. In fact, his ability to charge for the paywall is going to come down to his ability to lock the public out of the conversation convened by the Times."

This criticism echoes the sentiment of Shirky's new book, Cognitive Surplus; Creativity and Generosity in a Connected Age. The book argues that the popularity of online social media trumps all our old assumptions about the superiority of professional content, and the primacy of financial motivation. It proves, Shirky argues, that people are more creative and generous than we had ever imagined, and would rather use their free time participating in amateur online activities such as Wikipedia – for no financial reward – because they satisfy the primal human urge for creativity and connectedness. Just as the invention of the printing press transformed society, the internet's capacity for "an unlimited amount of zero-cost reproduction of any digital item by anyone who owns a computer" has removed the barrier to universal participation, and revealed that human beings would rather be creating and sharing than passively consuming what a privileged elite think they should watch. Instead of lamenting the silliness of a lot of social online media, we should be thrilled by the spontaneous collective campaigns and social activism also emerging. The potential civic value of all this hitherto untapped energy is nothing less, Shirky concludes, than revolutionary.

James Warner: Elena Kagan Unfit for Supreme Court

From The American Thinker:

On June 30, in her confirmation hearings, Solicitor General Elena Kagan gave a response which gives me pause about her fitness to serve on the Supreme Court. Senator Tom Coburn, Republican of Oklahoma, asked her view of the natural right to self-defense. She responded, hesitantly, that she didn't have a view of natural rights, independent of the Constitution. But natural rights, independent of the Constitution, form the very fabric of it. Let me explain.

The US Supreme Court, the court to which Elena Kagan aspires, said in Ex Parte Grossman, 267 US 87, 108 (1925), "The language of the Constitution cannot be interpreted safely except by reference to the common law and British institutions as they were when the instrument was framed and adopted." All of the men who wrote the Constitution, up until the time of the Declaration of Independence, had considered themselves Englishmen. The law by which they were governed was, in addition to the statutes enacted by colonial legislatures, the British common law. Beginning in 1765, William Blackstone published the first volume of his magisterial work, Commentaries on the Laws of England. The fourth and final volume was published in 1769, the same year as the first American edition. This edition includes a list of subscribers who purchased it in advance of its publication. This list includes several attorneys who sat in the Constitutional convention. The Founders were intimately familiar with the common law.

Blackstone writes of the British "Bill of Rights" which was passed early in the first parliament of William and Mary following the "Glorious Revolution," the revolt which led to the expulsion of the last Stuart monarch, James II. He explains that the Bill of Rights was not an act to grant rights to Englishmen, but an act which Parliament believed was to restore natural rights which had been usurped by the Stuart dynasty. The British Bill of Rights included the right to bear arms for self-defense.

Blackstone wrote that there were three absolute rights which were recognized by the common law as being natural rights: personal security, personal liberty, and private property. These rights were protected by certain auxiliary rights which included 1) the powers of Parliament, 2) limitation on the prerogative powers of the King, 3) access to the courts for justice, 4) the right to petition the King for redress of grievances, and 5) the right to keep and bear arms. The auxiliary rights were necessary, he said, to protect the absolute rights which no government could lawfully abridge.

Given what the Supreme Court precedent has already said, these rights are not "outside of the Constitution" as was suggested by Elena Kagan. Further, Blackstone was not the only influence on the framers.

Donald Lutz, writing in the American Political Science Review in 1984, listed all the British and European thinkers cited by the framers 16 times or more between 1760 and 1805. Blackstone, as I recall, was number five on the list. The list included a number of thinkers who wrote in favor of the existence of natural rights, including the natural right to self-defense, including Baron Montesquieu (#1), John Locke (#3), Cesare Beccaria (#6), Hugo Grotius (#10) and Marcus Tullius Cicero (#11).

Finally, the Constitution could not have been written unless we were an independent nation at the time we wrote it. The life of the Constitution rests upon the validity of the Declaration of Independence. Recall that the author of the Declaration states that the authority by which we declared our independence from Great Britain was "the Laws of Nature and of Nature's God." Thus, the very Constitution which Kagan would be called upon to judge depends upon a natural right which is independent of it.

The most fundamental question for any judge is why laws exist at all. Surely, laws exist to protect the personal security, personal liberty, and private property of those subject to them. This must mean that the rights to these, as Blackstone observed, exist independent of the laws written to protect them. Otherwise any manner of laws could be written, such as a law to tell us what foods we should eat and in what proportions.

To say that she has no view on natural rights means either she does not understand the origin and meaning of the Constitution or she is in fundamental disagreement with both. In either case, she does not belong on the Supreme Court.