Sen. Coburn Attacks Kagan For Agreeing With Justice Thomas On "Natural" Rights

June 30, 2010 6:13 pm ET

Today, Sen. Tom Coburn (R-OK) aggressively pressed Supreme Court nominee Elena Kagan on whether she believes there are "natural" rights that come from God as opposed to the Constitution.  Kagan responded that her job "as a justice is to enforce the Constitution and the laws," not her personal beliefs.  That answer clearly miffed Coburn, even though it's the exact same view that conservative Justice Clarence Thomas expressed at his own confirmation hearings.

Coburn Presses Kagan On "Natural" Law

Senator Coburn: "Do You Believe It Is A Fundamental, Preexisting Right To Have An Arm To Defend Yourself?" During her Coburn and Kagan had the following exchange:

COBURN: I have a very specific question for you.  Do you believe it is a fundamental, preexisting right to have an arm to defend yourself?

KAGAN: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans.  And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals and not simply collectively. 

COBURN: I'm not asking about your judicial - I'm asking you, Elena Kagan, do you personally believe there is a fundamental right in this area.  Do you agree with Blackstone that the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn't say that was a Constitutional right.  He said that's a natural right.  And what I'm asking you is do you agree with him?

KAGAN: Senator Coburn, to be honest with you, 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 other laws of the United States.

COBURN: So you wouldn't embrace what the Declaration of Independence says, that we have certain inalienable and God-given rights that aren't given in the Constitution, that are ours, ours alone, and that the government doesn't give those to us. 

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I'm not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws. 

COBURN:  I understand that.  I'm not talking about as a justice, I'm talking about Elena Kagan.  What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN: Senator Coburn, I think that the question of what I believe as to what people's rights are outside the Constitution and the laws - that you should not want me to act in any way on the basis of such a belief. 

COBURN: I would want you to always act on the belief of what our Declaration of Independence says. 

KAGAN: I think you should want me to act on the basis of law, and that is what I have upheld to do if I'm fortunate enough to be concerned - to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.  

Even Justice Thomas Agrees That Natural Law Has No Bearing On The Court

Justice Thomas: "I Don't See A Role For The Use Of Natural Law In Constitutional Adjudication."  At his Senate confirmation hearings, Justice Clarence Thomas stated:

As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis. [Thomas Confirmation Hearings, 9/10/91; emphasis added]