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Constitutional Opinions
Kagan’s Telepathy Standard
What would Thurgood Marshall do?
Thurgood Marshall liked to tell “stories” and some of them were “pure camp,” wrote Elena Kagan in her now-famous Texas Law Review article. She recalled his mimicking to “great comic effect” an oh-so-hilarious conversation with Prince Philip. “Do you care to hear my opinion of lawyers?” Prince Philip asked him. “Only,” Marshall replied, “if you care to hear my opinion of princes.”
The late British journalist Malcolm Muggeridge would have called this an exercise in wit “more mayoral than Voltairean.” Even Kagan, whom Marshall nicknamed “Shorty,” found the stories a little lame. “Thinking back, I’m not sure why we laughed so hard,” she wrote. Sycophantic careerism comes to mind.
In any case, Americans are now hearing via Kagan Thurgood Marshall’s campy opinion of the Constitution and the Founding Fathers. He regarded the former as “defective” and the latter as unwise.
Does Kagan agree with Marshall? She will say no at her confirmation hearings, but she clearly does. As she triumphantly ended her memorial piece about Marshall in the Texas Law Review, “our modern Constitution is his.” If Republicans can’t get “Shorty” on this one, they should call it a day. She has served up her contempt for the Constitution to them on a silver platter.
Our modern Constitution is his. So the criterion of judgment for justices is not even “empathy,” as Obama asserts, but more like telepathy: What would Thurgood Marshall do? How would he rule on cases? What did he consider “just”?
So much for a written Constitution. If “our modern Constitution is his,” then Marshall’s putative thoughts on what constitutes a just and proper form of government for 300 million Americans are the only authoritative ones; those of its authors are irrelevant.
Though she will deny it in her confirmation hearings, she agrees with Marshall that a “defective” Constitution is to be changed not by amendment but by judicial activism. How could she plausibly deny this? How else did Marshall’s “living” Constitution that she praises, which exists nowhere except in the minds and wills of liberal justices like him, come to trump the original text of the Constitution?
“Our modern Constitution is his” thanks to this straightforward judicial tyranny. It is a little late for her to present herself as a proponent of judicial restraint or even “pragmatism,” as her fawning press coverage tries to emphasize. Pragmatism, by the way, is a trait of a politician, not a judge, and it will just mean that she rips up the Constitution a little more slowly.
Quoting Marshall with approval in her law review eulogy, she makes it clear that she considers the phony living Constitution to be a glorious substitute for the real one. Hence, the Constitution now “contains a great deal to be proud of,” as Marshall put it. Michelle Obama couldn’t have said it better. For the first time in his life, Thurgood Marshall was proud of his Constitution: “[B]ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them,” Kagan quotes him as saying.
As if any reader could have missed Marshall’s egotistical claim, Kagan punctuates it with the praise: “The credit, in other words, belongs to people like Justice Marshall.” Kagan called his baldly unconstitutional view of the Supreme Court’s role a “thing of glory.”
Tens of millions of unborn babies have died under this “thing of glory.” America is turning into a mindless, Godless, socialist mess because of this “thing of glory.” Yet these out-of-control narcissists still claim a monopoly on justice and wise government. They alone will protect the “despised and disadvantaged,” which Marshall invented out of thin air as the court’s mandate. Writes Kagan: “It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government…”
Great. That’s very big of them. But who will protect the people against activists like the Marshalls and Kagans? Who will protect the people against arrogant-as-hell elitists on the court who feel entitled to trample upon constitutional rights in the name of a bogus enlightenment? This is tyranny, pure and simple, under which a whole people gradually becomes a servile class “despised and disadvantaged” by judges.
About the Author
George Neumayr, a contributing editor to The American Spectator, is co-author, with Phyllis Schlafly, of the new book, No Higher Power: Obama’s War on Religious Freedom.
Letter to the Editor View all comments (89) | Leave a comment
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Pingback| 5.13.10 @ 6:23AM
Twitter Trackbacks for The American Spectator : Kagan's Telepathy Standard [spectato links to this page. Here’s an excerpt:
Pingback| 5.13.10 @ 7:12AM
Kagan likely to face two lines of questioning in second day of Capitol Hill … links to this page. Here’s an excerpt:
Louis Jenkins| 5.13.10 @ 8:06AM
There is nothing but distain for the Constitution by Kagan. No matter how the authorities point to the Constitution she is mostly unfamiliar with it, and is concerned with the "little guys". Time of day: 11:59 midnight.
Purpleguy| 5.13.10 @ 4:24PM
I think you mean disdain? You mean like the Conservative majority simply threw away 100 years of precedence in the Citizens United case and worsened the view that a Corporation has personhood status with rights and freedoms as if they were people? Are those the Activist Justices you mean?
Nick| 5.13.10 @ 6:14PM
PurpleJackass,
Are you really correcting someone, again?
You, who misspelled the word "hypocrite?"
You, who thinks President Bush was in office for 10 months when the attacks of September 11th, 2001, occured.
You can't even do simple math, dope!
Charles Martel| 5.15.10 @ 2:45AM
I think you mean "precedents". Corporations ARE people: they are populated by no others. And one either embraces the First Amendment or one doesn't. You clearly do not.
+++
Nick| 5.15.10 @ 10:52AM
See how stupid you are, PurpleJackass?
I can't believe I missed your misuse of "precedence." Thanks Mr. Martel.
JP| 5.13.10 @ 8:37AM
It is telling that recent nominees (Roberts included) have mastered the politic art, and in many cases thier political skills outshine thier judicial ones (Breyer, O'Conner, Sottomayer, Kagan). Yet, none have ever held elective office. What this does indicate is a kind of careerist ticket punching which produces a very narrow abstract understanding of our legal system. Kagan is onl y the more recent example of this. In the distant past it wasn't unusual to find the High Court filled with men who held elective office (Warren, Taft) or cabinet posts (Chase).
Today's jurists go straight from academia to K-Street, and then to the Appeals Courts. Or in Kagan's example, they remain in academia until called up to serve as some WH functionary. Govenor Mario Cuomo was the last elected offical I can remember who ever was mentioned as a possible SCOTUS nominee. And that was 20 years ago.
Indiana Alex| 5.13.10 @ 9:36AM
Jennifer Granholm was floated as a trial baloon for this pick.
Purpleguy| 5.13.10 @ 4:29PM
Ahem, I beg to differ ... Sandra Day O'Connor appointed by Ronald Reagan did have plenty of elective offices ...
In 1969 she was appointed to the Arizona State Senate by Republican Arizona Governor Jack Richard Williams and was subsequently re-elected as a Republican to two two-year terms. In 1973, she was elected majority leader.
Anthony| 5.13.10 @ 9:55AM
So "Shorty" comes up a bit short on fealty to the Constitution, who would have thunk it?? Perhaps one of the Club Senate Rs, if they can get off their submissive knees long enough, will ask "Shorty" what she called Marshall behind his back, "Big Dummy" would have come to my mind, if I was one of his adoring sycophants.
There is one thing that is clearly "defective" in Washington, and it's not the Constitution. What is defective in Washington, is Washington itself. The great cleansing commenses in November.
P.S. Speaking of defective, Fla hack extraordinaire Crist, now refuses to refund Rs for their campaign contributions. Might I suggest you Floridians get Crist, drop him into the Gulf oil spill and let this sponge soak up all the oil. At least some use can be gained by this puke.
Anthony| 5.13.10 @ 10:30AM
P.S. George, Great picture of ole Thurgood. He was much funnier on "Family Guy" than as a S.C. Justice.
loulou| 5.13.10 @ 11:42AM
I see a physical resemblence between Kagan and Marshall.
stephie| 5.13.10 @ 11:34AM
How in the hell do you put someone on the Supreme Court who has never been a judge?
What happened to experience or is this just, "I'll pick you doll, but you gotta do things my way".
What is to become of us?
Purpleguy| 5.13.10 @ 5:16PM
Don't be stupid or is it ignorant of your own country's history?
William Rehnquist, remember him?, had no judicial experience either. Neither did Earl Warren ... ultimately 40% of the all Supremes did not have judicial experience. Not much of a complaint now is it? And, we'll just be fine sweetie.
Nick| 5.13.10 @ 6:45PM
Yes, but Chief Justice Rehnquist never argued that Congress has the power to ban books and pamphlets.
Like the KAGAN did, just last September.
loulou| 5.13.10 @ 11:40AM
Thurgood Marshall??
Marshall was known to be one of the stupidest justices ever. In addition to the fact that he had senile dementia towards the end. Did Kagan recognize that?
Interested Conservative| 5.13.10 @ 3:53PM
Many of them have senile dementia toward the end, so I'd discount that as a standard. Alternate views of reality, let alone the law, are more germane matters.
She seems pretty light in the life experience department, even by SCOTUS standards.
WAKE UP| 5.13.10 @ 1:11PM
You guys are heading down the same road that New Zealand's recently-deposed Labour Government started taking ten years or so ago. Took us nine years to get rid of them once they got entrenched, and even now it lingers...
Remember that in November - and move swiftly now.
Purpleguy| 5.13.10 @ 5:18PM
Nah, go back to sleep .. .nothing to see here.
Len| 5.13.10 @ 3:36PM
In Judaism there is a saying " from Moses to Moses", referring of course to the Moses of scriptures and Maimonides, who is considered to be one of the greatest Rabbis ever. Perhaps the progressives should adopt a like saying "from Marshall to Marshall". It was John Marshall who got the ball rolling with the "living constitution", and was instrumental adding power to the Supreme Court through the Marbury vs. Madison case. Amazingly enough in this case SCOTUS got to decide the extent of it's own power, and from that point on it's been downhill.
Purpleguy| 5.13.10 @ 5:25PM
John Marshall, you mean THE John Marshall that was the first Supreme Court Chief Justice? and the Madison vs Marbury case with James Madison as the plaintiff while Thomas Jefferson was President. Hmmmm, while the Founders of the Constitution and country were in office, with one of them, Madison, ostensibly the writer of the Constitution?
If the Founders "got the ball rolling" for the "living" Constitution, who are you to question THEIR judgement? The Constitution works because it isn't stuck in concrete with no room for adjustments. It is the framework of the Government that matters with checks and balances between Federal and State supremacy, and between the 3 branches of Government. Add to that the Bill of Rights to enshrine our rights and what the Government cannot impinge upon, and you have most of the Constitution.
Anyone who wants to know what "Original Intent" is all about, ought to think about Madison v. Marbury and how that has shaped our world today.
Nick| 5.13.10 @ 6:38PM
PurpleJackass,
What did President Jefferson have to do with the writting of the Constitution? He was in France at the time, brainiac.
It is Marbury v. Madison, by the way. Not that you would know anything about the case or the issues involved.
You can't even do simple math!
Paul Ashley| 5.14.10 @ 7:36AM
The Constitution is indeed "stuck in concrete" until Constitutional means are used to alter it, and those means do not include judicial fiat.
Charles Martel| 5.15.10 @ 2:53AM
John Marshall was NOT the first Supreme Court Chief Justice, you pinhead. And he was not a Founder: he was a usurper, no less than Aaron Burr, except that Marshall had a lifetime appointment.
+++
Pingback| 5.13.10 @ 6:25PM
The American Spectator : Kagan's Telepathy Standard capital university links to this page. Here’s an excerpt:
Len| 5.13.10 @ 6:37PM
I mean that John Marshall, the one who as Secretary of State(judicial and executive branches mixing??) was the one who failed to deliver the commission to Marbury. WHOA!!! Talk about conflict of interest and the need to recuse oneself.
Your room for adjustments is spelled out in article 5, and is called the amendment process, until further powers are delegated they remain those of the people and the states. Let me help you out there....
The conventions of a number of the States having at the time of
their adopting the Constitution of the Constitution, expressed a
desire, in order to prevent misconstruction or abuse of its powers,
that further declaratory and restrictive clauses should be added
Thus...Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
and.....Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I know it's hard for you to understand considering that progressives are taught to ignore the actual language of the US constitution, but the US constitution says nothing about a framework or checks and balances, but rather speaks of delegated power, restrictions, petitioning the states for further power, limits, qualifications,etc., etc.
If the federal government gets to be the judge of the extent of it's power, then what would be the point of the first congress adding as it said FURTHER declaratory (the power is enumerated, not implied), and restrictive (the power is limited to what is enumerated or necessary for carrying that power).
An easy example is the Dept. of Education. On Aug.18th of the federal convention such a power was debated and rejected, so clearly this cannot even be implied, yet today we have a Dept. of Education. This is a clear usurpation.
Another clear example is the federal reserve. Congress is charged with coining money and regulating the value thereof. That it is to be coin, meaning specie, is clear by the number of framers who sought to ensure that no such thing as fiat money would plague the states. The issue of fiat money vs. backed money is actually one of the major factors for instituting the federal government, but of course one so astute and knowledgeable is already aware of this.
Pingback| 5.13.10 @ 7:19PM
The American Spectator : Kagan's Telepathy Standard links to this page. Here’s an excerpt:
Jakester| 5.13.10 @ 7:39PM
Everything on the right seems to devolve to abortion and Roe vs. Wade. Granted, that case went too far, but abortion was legal in many places before that. What if the Congress over turned abortion law legislatively or via constitutional amendment, not unlikely scenarios back then? Would you transfer your hate to them away from the court?
Nick| 5.13.10 @ 7:49PM
Go take a history class, Jakester.
You know not of what you speak.
Long Ben| 5.13.10 @ 8:07PM
When the Supremes arrogate to themselves the setting of morays and community standards in the several states in particular the sovereign State of Texas they are militating against self government. Not to mention, using the tenth amendment for bum wad.
Anthony| 5.13.10 @ 8:22PM
MEDICAL ALERT..... MEDICAL ALERT
As reported by Mark Levin, it appears that Tingly Leg Syndrome is contagious. The Babe Ruth of softballs, yes, our little Ms. Kagan, apparently while at U of C, called The One, The Obama, "her hero".
Yes, she said she could see his brilliance. Of course she should be on the Supreme Court, she sees penumbras, just like Douglas and Warren did.
Chris Matthews is said to have contracted this horrible disease from contact with Kagan and other like minded, moronic leftists.
Warning, contact with brain-dead leftists exposes you to this pathogen.
This message has been brought to you by Obama health care, where your medical records are our medical records. Now shut the hell up and get in line for your anal exam. You first Purpleguy.
Jim O'Brien| 5.13.10 @ 8:45PM
Kagan drooling over Obama in 2005:
http://www.youtube.com/watch?v.....r_embedded
Can there be any doubt about her political views?
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Brian| 5.14.10 @ 6:40AM
Repubs should add to their platform that they will remove en-mass all the liberals from the federal courts. The ppl need to show the courts just who the boss is!
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Charles Martel| 5.15.10 @ 2:58AM
If it is made apparent that a justice lied under oath during her confirmation hearing, is that not perjury, an impeachable offense? If not, why not?
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