By Fr. George Welzbacher
August 1, 2010
By the time this week's bulletin has come back to us from the printer Elena Kagan may well have been confirmed by the U. S. Senate as retiring Justice John Paul Stevens' successor on our nation's Supreme Court. That such confirmation would constitute a disaster for the Pro-Life cause is manifest from Ms. Kagan's aggressive intervention back in 1996, acting in her capacity as President Clinton's deputy assistant for domestic policy, in persuading the Board of the American College of Obstetricians and Gynecologists (ACOG) to revise and reverse a conclusion originally set forth in a draft report issued by an ACOG select panel. The language used in the panel's privately circulated DRAFT report, a report that had come into Ms. Kagan's hands before publication, stated that the panel's members "could identify NO circumstance under which THIS procedure [partial-birth abortion] .. would be the ONLY option to save the life or to preserve the health of a woman." A memo from Ms. Kagan to ACOG's legislative director (a memo included in the documents submitted to the U.S. Senate's Judiciary Committee), urged the substitution of NEW language that would CONTRADICT the draft statement's ORIGINAL conclusion. MS KAGAN HERSELF PROVIDED THAT NEW LANGUAGE, which was then incorporated into the ACOG panel's final report and was published as an expression of the panel's official "scientific" judgment. The new language composed by Ms. Kagan reads as follows: "An intact D & X [the medical term for extracting most of the baby's body from the birth canal while thrusting a pump into the base of the baby's skull to suction out its brain before the baby's head could fully emerge from the birth canal] may, however, BE THE BEST OR MOST APPROPRIATE PROCEDURE in a particular circumstance to save the life or to preserve the health of a woman."
No one who believes in a human being's "unalienable right to life" could possibly defend such a procedure. And in her recent testimony before the Senate Judiciary Committee Ms. Kagan's response to one of the member's questions seems indeed to suggest that she does NOT hold to the existence of a natural moral law that governs human behavior independently of human positive law, based as the natural law is on "certain unalienable rights" with which all human beings have been "endowed by their Creator." Or at the very least her words suggest that she does not believe that in pronouncing judgment a judge should take that natural moral law into consideration. If that is so, what is on display is a mind-set that is totally at war with the convictions that inspired our own Declaration of Independence. That a Supreme Court Justice should pronounce judgment on the basis of so relativistic a philosophic viewpoint constitutes grounds for grave concern.
Such grave concern was persuasively addressed at length by Washington Times columnist (and former editor) Tony Blankley in his paper's National Edition for July 19th.
May I share his essay with you here.
* * * * *Bar Elena Kagan from the Supreme Court
By: Tony Blankley--The Washington Times
Monday July 19, 2010
"To be honest with you, I don't HAVE a view of what are NA TURAL 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."
Elena Kagan, June 30, 2010, in Senate testimony: ... I'm not saying I do not believe that there are rights pre-existent [to] the Constitution and the laws. But my job as a justice is to enforce the Constitution and laws. You should not want me to act in any way on the basis of such a belief [in an inalienable right to life, liberty and the pursuit of happiness] if I had one ... [She said this on being asked if she disagreed with the Declaration of Independence's enunciation of unalienable rights]."
[Her view stands in contrast, for example, with the iconic principle expressed by] Justice John Marshall, Fletcher v. Peck, Supreme Court (1810):
"[It is not simply] the particular provisions of the Constitution of the United States [that nullified the Georgia statute] but also those general principles which are common to our free institutions."
Apparently unbeknownst to Ms. Kagan, from the very beginning, it was the inalienable rights of the people that made the people sovereign and thus permitted the people to form the Constitution and continue to guide its application.
The very reason for the American experiment was-and is--to establish the principle and the REALITY that no man or government may alienate a person's life, liberty or pursuit of happiness.
Anyone who has experienced the expectation of the imminent loss of any of those conditions knows profoundly their value-and thus the value of our form of government, which exists to PROTECT those rights.
It does not take a legal scholar to know that.
But it could be said that no one can rightly be called an American legal scholar who does not understand "that the unalienable rights to life, liberty and the pursuit of happiness" are the animating purposes of ALL of our laws-and of THE LAW. They are the SOUL of our Constitution. Without those rights, the body of law is a corpse-a soulless, purposeless, manipulable, disposable, dead, material thing. If Ms. Kagan does not know that, then she knows nothing of our law.
Even more to the point, the right to remove those conditions from a man must always lie exclusively in the power of Him who gave them. The judge or politician who does not understand the SOURCE of those rights is ever LIKELY to presume -at some useful moment-that a mere man or woman or government may act to DENY such rights if they are NOT so created-but are mere temporary grants of privilege from an all-powerful state.
We have seen in the current congressional session how indifferent our government is even to the formalities of positive law and procedure.
Less than a month ago, the House decided to "deem" a federal budget passed- though it has NOT been passed. A few months ago, it was prepared to "deem" a transforming socializing health services scheme PASSED WITHOUT voting on it.
Our Founders, in the opening decades of our national life, built into our governing fundamentals many redundancies-fail safes--to protect us from tyranny, either of the creeping or of the sudden kind. First, a Congress of the people, two branches to check each other, and an executive branch itself in check with the others, and the states in sovereign balance with the federal powers. And all those powers subordinate to the undergirding sovereignty of the people.
The very power of the Supreme Court to exercise judicial review derives precisely from the court's being empowered by the pre-constitutional sovereignty of the people in their inalienable right to protect themselves from any undue state restraints on such sovereign rights (see "Empire of Liberty," Gordon S. Wood, pages 443, 448-451).
And now, proposed to be intruded into that temple o fjustice-that last fail-safe offreedom--comes the form of Elena Kagan. Cold to the passion of our Declaration of Independence.
Ignorant of its animating powers. Insentient of its still-governing force. And- thankfully--oblivious even to her need to attempt to HIDE her true scorn for and indifference to our founding unalienable rights.
It is a dead certainty that, if she is admitted to the high court, the day will come when she will cast aside----carelessly, indifferently and without pause, but with a leering smile and chuckle on her lips--our sacred birthrights as so much nuisance and interference with the government's right to direct our lives as it--or she-sees fit.
She must be barred from the court.
Forty-one filibustering senators can save the Republic. Or all 99 will surely be condemned by history for their failure to act when they had the legal power to do so....
* * * * *
A film currently on screen here in the Twin Cities at the Edina Multiplex at 50 and France shows how an intuitive belief in the natural moral law can inspire a heroic teen-ager to oppose the forces of entrenched evil. The film is Winter's Bone. One scene of brutal violence makes this a film that is not for younger children, but teenagers and adults will find themselves following with compelling interest the struggle of a 17-year-old girl in Missouri's Ozark mountains to overcome a seemingly indomitable network of evil in order to protect her younger brother and sister. With pitch-perfect acting right across the board, with a terrific plot, and with brilliant cinematography this film deserves at the very least three academy awards. And it could provide Elena Kagan with food for thought.
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