Elena Kagan’s Republican interlocutors want to know.
Jefferson Beauregard Sessions the Third of Selma Alabama can’t quite figure it out, nor can John Cornyn the Third of Houston Texas or Jon Llewellyn Kyl of Phoenix Arizona. Even the devout Mormon* Orrin Grant Hatch from Salt Lake City Utah is perplexed.
It is a real headscratcher. Expect them and others on the Right to keep wondering about it, right out loud in front of everyone.
When she gets a chance to speak I’d like to hear Kagan quote a different Supreme Court Justice by the same last name, Chief Justice John Marshall. Among his activist rulings were Marbury v. Madison in which he established the Supreme Court as a co-equal part of government but with the absolute authority to interpret the Constitution and deny to Congress and the President and even a majority of voters the power to act against the Court’s interpretation.
In Cohens v. Virginia he established the supremacy of the US Constitution and federal law over that of the states and in Gibbons v. Ogden he established the power of the federal government to interfere in and overturn actions of the states in both criminal and civil proceedings, effectively ending the State’s Rights argument long before it was raised in defense of slavery or to obstruct equality in education or limitations on the right of a woman to have control over her own body.
But most germane to the present line of questioning was McCulloch v. Maryland in which he described the Constitution as a living document not fixed for all time but rather intended to “to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs …” through which the federal government is envested with plenary powers “on which the welfare of a nation essentially depends.” In order to act this government would be free in its choice of means and not tied to a literal interpretation of the Constitution, but rather open to change and growth. In the same ruling he also established the principle of “implied powers” clearly stating that within the literal structure of the Constitution are powers intended for its implementation, and presaging the countervailing concept that it also includes implied rights.
I wish that Kagan would deliver a brief summation of that Justice Marshall’s work and ask each of her antagonists in turn if they think he was too much of an “activist” judge, and would they have supported his nomination?
I would rather undertake to convert five thousand Lamanites [Native Americans], than to convert one of those poor miserable creatures [Jews] whose fathers killed the Savior…. Yes, I would rather undertake to convert the devil himself, if it were possible. …I would say, leave them, and come home, the Lord does not require you to stay there, for they must suffer and be damned. …leave them to live and die in their sins and ignorance. …they take pleasure in their wickedness….”
LDS Prophet Brigham Young, 1854, Journal of Discourses Vol. 2, p. 143
“I tell you, this people that are commonly called Negroes are the children of old Cain. I know they are, I know that they cannot bear rule in the priesthood, for the curse on them was to remain upon them, until the resedue (sic) of the posterity of Michal (sic) and his wife receive the blessings…and hold the keys of the priesthood…. In the Kingdom of God on the Earth the Affricans (sic) cannot hold one partical (sic) of power in government [within the LDS church].”
LDS Prophet Brigham Young, 1852, Addresses MS d1234, Box 48, Folder 3
The Mormons did get a new revelation from their Prophet in 1978 allowing black males to be full participants in Mormon spiritual blessings, but apparently the Revealed True Word of God doesn’t carry enough authority to clear the taint of dark skin in every churchgoer’s view.