Bless Oklahoma Republican Sen. Tom Coburn, whose questions to Supreme Court nominee Elena Kagan are actually eliciting some of her thoughts on constitutional issues. His question about whether a federal law requiring Americans to eat "three vegetables and three fruits" every day would be a legitimate exercise of the power to regulate interstate commerce had the nomineee hemming and hawing, bobbing and weaving, and she never really answered the question. It was hard to listen to that without suspecting that Elena Kagan would let the federal government in general and Congress speficially do just about anything anybody could dream up, no matter how outrageous.
And then he asked her about "natural rights" -- you know, those rights we have just because we're human, and which governments should protect as their primary duty -- and it wasn't clear she actually recognizes them:
Note that she described the duties of a justice as to "enforce the Constitution and laws," thus suggesting that the latter command an authority equal to the former. In fact, the Constitution is superior to the laws because they must conform to its requirements. But if the rights recognized by the Constitution aren't independent of and superior to government, then they will be whatever those who write and interpret the laws say they are, just as George III and the English Parliament claimed.
Don't think I'm going to like her court tenure much. She's no Clarence Thomas, that's for sure.
