According to the Washington Post, Elena Kagan’s past as solicitor general has forced her to recuse herself from 25 of the 51 cases accepted by the court this term. Considering the damage done to all of us by the villains in black, this may make Kagan an early favorite as the greatest Supreme Court Justice in living memory.
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From Stephen Bainbridge via Tyler Cowen comes a list of the worst Americans:
John Hawkins asked a bunch of right of center bloggers to list the “20 Worst Americans of all time,” from which he compiled the following list. The comments are mine. Personally, I find the collated list pretty much of a joke. It reflects the partisan passions of the moment, not anything resembling a serious verdict of history.
It goes on to list the usual suspects from the modern political right’s perspective: the Clintons, Michael Moore, Noam Chomsky, various spies and assassins, FDR, Ted Kennedy and so on. I agree with Bainbridge that several selections are historically dubious; leftist loudmouths such as Moore and Al Sharpton seem inconsequential next to true monsters like FDR and Lyndon Baines Johnson.
I doubt Bainbridge would agree with a libertarian’s list, however, although some overlap would exist. But we libertarians enjoy the benefit of an anti-state, pro-liberty perspective, which neither the right nor left will entertain. Thus while Bainbridge puts John Wilkes Booth, the assassin of “our greatest President”, at # 3 of his own list, Booth’s target would top mine. Yes, Abraham Lincoln: the worst American ever.
And certainly no other assassin or spy or anyone else who has undermined the state would go on my list of worst Americans. The worst Americans are the ones who have used the state to murder, rob and terrorize innocent people. Lincoln prosecuted a war to prevent secession and caused the deaths of 600,000 Americans and virtually unmeasurable economic destruction. Timothy McVeigh isn’t our worst domestic terrorist: the United States government is.
FDR, who ushered in the modern welfare state and deliberately goaded the Japanese to attack Pearl Harbor, thus providing an excuse to push the U. S. into WWII, surely is in the top five. As is his successor, Harry Truman, for slaughtering hundreds of thousands of Japanese civilians with atomic weapons.
Then there’s Alexander Hamilton, a strong centralist whose ideas of protectionism and fiat currency plague American economic policy to this day.
Here are some of my choices, not in a meaningful order after the top five or so:
I’m sure readers can think of many others, but this is a good start.
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As noted in this Reason article, Supreme Court nominee Elena Kagan was questioned by a Senator about whether she believes in natural rights that are not provided in the Constitution. She repeatedly refused to grant this, instead insisting: “I don’t have a view of what are natural rights, independent of the Constitution. And my job as a Justice will be to enforce and defend the Constitution and the laws of the United States.”
No doubt she’s going to be taken to task for this by conservatives and libertarian centralists and judicial supremacists. But honestly, do you really want Kagan imposing her own personal view of morality on the country?
I think I agree with her saying her views on natural rights are not relevant. (As an aside: when asked about the Heller case, she responded: “… I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.” Notice the word “accept” here: she implies she agrees without saying she agrees. Accepting it means you recognize it was decided and is currently law. It doesn’t mean you agree or that you wouldn’t overturn it.)
Anyway, I think a better answer would be something like this:
Senator, I, like most people, have my own personal views on morals and on what rights people do or should have. But my job as Justice on the Supreme Court is not to impose my personal views. It’s to interpret the Constitution. The Constitution itself, of course, declares and enumerates certain rights. But it is also clear–from the Ninth Amendment and other considerations–that the Framers believed in a certain set of rights retained by the people, including rights not enumerated in the Bill of Rights or elsewhere in the Constitution. So, as Professor Randy Barnett has argued, fidelity to the original understanding of the powers granted by the Constitution to the federal government–and of the rights that limit these powers–requires me, as Justice, to determine what this set of background natural rights comprises, whether it comports with my own personal political ethics or not. It is the natural rights as understood by the founding generation that matters, not as I or others conceive of them today.
Now, if you ask me what this set of the “Framers’” natural rights comprises, I cannot exhaustively say at present. It appears to be open-ended, and requires a great deal of historical research. In a given case, one would have to look into the historical evidence of the understanding of rights as of 1791 to determine if there is a background, unenumerated right that might be relevant to the case at hand. One approach to giving effect to this understanding of the unenumerated rights that the Ninth Amendment contemplates would be to adopt a “presumption of liberty” test as advocated by Professor Barnett, and/or a complementary approach based on the Tenth Amendment in which all federal legislation is scrutinized to determine whether it is specifically authorized in Article I, Section 8 of the Constitution. Under the latter approach, legislation that is not authorized is held unconstitutional, so that this enumerated-powers approach operates similarly to an unenumerated-rights approach, to nullify laws that are not supported by an enumerated power (or that contravene an unenumerated right, which is often the same thing, as the very purpose of the enumerated powers approach was to limited federal power so as to protect both enumerated and unenumerated rights).
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