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Kagan Won't Take a Stand in Favor of the Declaration of Independence

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RUSH: Grab audio sound bite three. Play this. This is a question from Tom Coburn yesterday. He asked her about the whole business of natural rights. She's not sure! She is not sure on the Declaration of Independence. Yesterday Tom Coburn (R-OK): "Do you agree 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 it's a natural right. I'm asking with you: Do you agree with that?"

KAGAN: Senator Coburn, t-t-to be honest with you, I -- I -- 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 God-given, inalienable rights that aren't given in the Constitution? That they're ours and ours alone and that 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 pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

RUSH: And to hell with the Declaration of Independence. She is basically just throwing the whole concept of natural law down the toilet and flushing it. She is throwing the Declaration of Independence down the toilet. "We are all endowed by Our Creator with certain inalienable rights, among them, life, liberty, and the pursuit of happiness." She was asked if she believes that and she essentially said she's not sure. She wouldn't even commit to the idea that human beings possess certain inalienable rights preexisting the US Constitution, and that is the best person Obama could find to become the next associate justice of the US Supreme Court.

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RUSH: Tom Coburn was incredulous that Elena Kagan would not even comment on the concept of natural rights, natural law, inalienable rights. So, he said, "Well, I understand that." As a justice you're going to do this and do that, but, "Well, 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 -- I think that the question of what I believe as to what people's rights are outside the Constitution or the laws, that you should not want me to act in any way on the basis of such a belief if I had one or --

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

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

RUSH: Now, the day before yesterday I was made fun of on CNN because I said she's holding back on her true desires of looking at the Constitution at it as immoral and unjust and wanting to change it. "Well, of course nobody could get confirmed if they said that," John King and his guest said. Well, here this woman is disavowing the Declaration of Independence. Now, I know the Declaration of Independence is not law, but the Declaration of Independence defines us as a people. One of the reasons why this is one of the greatest countries on earth is the Constitution and the founding documents -- all of them, including the Declaration. "We are all endowed by our Creator, certain inalienable rights, among them life, liberty, pursuit of happiness. If the government, whatever branch, will not stand for those things, who will? Abraham Lincoln, who freed the slaves, held the Declaration above even the Constitution, its ideals at least.

So it makes sense that those who seek to re-enslave us, loosely defined, would feel the opposite way. They've convinced themselves that there is a "living, breathing Constitution," which means there's no Constitution at all. The Constitution is what they want it to be at any given moment. So inalienable rights -- an absolute guaranteed by God no less -- they find threatening. And we're about to put somebody who obviously holds this view on the United States Supreme Court. I wonder if Elena Kagan would agree that all human beings have an alien right to live in the United States and become US citizens. Obama clearly does. Obama vomited the cliche line: "These people are only seeking a better life." The implication was, "They're only seeking a better life! Who are we to tell 'em they can't have a better life?" So I guess the people coming here illegally, they got all kinds of rights and we're going to make sure that they are enshrined somewhere. In the process, the natural rights and conferred rights of American citizens are going to take a hit administered by this administration.

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RUSH: So somebody just asked me a question in the e-mail: "So, Rush, I listened to what you said about Kagan, the Declaration, the Constitution, Obama on the Statue of Liberty. So your point is, we have somebody here explicitly rejecting the founding of the country and originalism of the Constitution who's gonna sail through the Senate confirmation process?" Yeah. Yeah. Do you see anybody...? Coburn is making noises about maybe filibustering. Quin Hillyer today, American Spectator has a piece that they ought to do a temporary filibuster and announce that they're going to have a filibuster. Not permanently, but just until September so the American people can learn who this woman is because they're not being informed who she is by virtue of the confirmation hearings. People need to understand that any vote for Kagan is a vote for Obama's agenda: The individual mandate, cap and trade, vote against the text of the Constitution. Kagan is who is controversial, not me, and not those of us making these allegations about her. She's the one who's controversial. This is the back of the hand to the American people. This is a back slap, slap of the hand to the law and the founding. It's being treated with contempt. That they think it deserves.

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RUSH: Mary Ellen in Rehoboth, Massachusetts, is that right? Great to have you on the program.

CALLER: It is, Rush. It's Rehoboth, Massachusetts.

RUSH: Rehoboth. Thank you very much.

CALLER: You're welcome. I have probably a very stupid question but, you know, here goes. I don't understand why the senators cannot filibuster the Kagan nomination because it is obvious that she is not being either forthright or honest --

RUSH: They can.

CALLER: -- or truthful in her answers.

RUSH: They can.

CALLER: Well, then why are they not going to? Because seems to me if she cannot be honest and we have the proof that she is not being honest, we have her writings, those that they have allowed us to read. If she cannot even be honest about that, then why would we put her on the Supreme Court? I don't think if she gave those answers she could be on a jury.

RUSH: Yeah. Excellent point. But there's a little thing here called politics. The question is what should the Republicans do about this?

CALLER: I believe that they should filibuster. I think America is very hungry for truth.

RUSH: Right.

CALLER: And I think Americans are very hungry at this point --

RUSH: That's exactly right. That's why they listen to this show. So the question is what should the Republicans do about this? It's not that she's lying or obfuscating. We know for certain what she is. We know for certain what she's going to do on this court. Now, Quin Hillyer -- I mentioned this earlier, American Spectator today -- they can announce a temporary filibuster to put off the vote until September or August so the Republicans could take the time to inform people who this woman is because the hearings are not producing any of that information. By the way, all of her records are not in. There has been a pretty good document dump but so much that the staff has not had a chance to go through all of it. A lot of it's from the Clinton era, and it has not been released, and those documents, the Clinton era, will illustrate the 100% political animal that she is as opposed to having a judicial temperament.

So filibuster until the records are reviewed by September, or block her altogether. My sense is they're not going to do either of those things. Yet we have a nominee who explicitly rejects the founding documents of this country and the whole concept of originalism in the Constitution. And she's going to sail through. Any vote for her is a vote for Obama's agenda, every aspect of it. But Mary Ellen, they can filibuster. The question is, will they? And while nobody knows, Coburn is alluding to the possibility and Jeff Sessions has alluded to the possibility. But you've also got Lindsey Grahamnesty on the committee as well who probably wouldn't because they don't want to make waves. I mean after all, they'll say, Obama won, he gets to appoint who he wants to appoint. We want them to be nice to our nominee next time we have the chance to make -- this is the thinking. So I wouldn't hold my breath for filibuster. You could pray for it. I certainly will. But whether or not it will happen, we'll just have to wait and see.

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RUSH: Here's Herman in Houston. Herman's a lawyer. Great to have you, Herman, on the EIB Network. Hello.

CALLER: Hello, Rush. Great honor to talk with you.

RUSH: Thank you, sir.

CALLER: I wanted to return to the thing about Kagan and natural rights. When she says that she doesn't care about natural rights such as the rights mentioned in the Declaration, she's essentially saying she doesn't care about the Ninth Amendment to the Constitution, because the Ninth Amendment says the enumeration in the Constitution of certain rights shall not be construed to deny other rights retained by the people.

RUSH: That's right.

CALLER: So it's a sly thing that she's doing because on one hand she says, "Oh, no, no, I'm sticking to the Constitution. If it's not in the Constitution, you know, I'm not interested in it." So she gets to come off as this textualist when in fact she's ignoring the Ninth Amendment to the Constitution, along with the Tenth Amendment, I'm sure, as well. So it's kind of an infuriating thing for me to see her sort of try to hold herself out as some strict constructionist when she's actually ignoring the Ninth Amendment. The Framers had natural rights specifically in mind when they wrote the Ninth Amendment. They were concerned that --

RUSH: Would you explain -- sometimes I run into people, and you're a lawyer, sometimes people get confused on natural law, natural rights. Could you give an example of one just so people know what you're talking about, that she doesn't acknowledge?

CALLER: Well, the clearest one -- and I think the Second Amendment is there to protect it -- is the right to life. That is my, you know, essential beginning natural right. I have a right to keep myself alive and to resist anyone who would try to kill me.

RUSH: Right. And that's not a law that's been passed by somebody somewhere. That's something you are born with, that's part of your essence.

CALLER: That is exactly right.

RUSH: Your creation, if you want say it that way.

CALLER: Yes. Yes. And, you know, the natural rights tradition is an important tradition in American constitutional law, and basically what she says is, "I don't care about that." You know, on the one hand, they're ignoring well-established rights that are protected by the Ninth Amendment. On the other hand they want to create all these other rights that have no natural rights tradition that are not mentioned anywhere in the Constitution, right health care, right to free lunch. It's a frustrating perversion, but that's what we have with these folks.

RUSH: Well, yeah, here's the danger. They just need one more vote on this court and we're done. Where do we go to get our natural rights? They're going to be gone. We're going to have a court that refuses to recognize them, as we are seeing clearly from Ms. Kagan. We're hanging by a thread here on this whole notion of the rule of law on the role that it has played in defining and maintaining the country. Thanks, Herman, very much.

Dan, Rochester, Minnesota, great to have you on the EIB Network. Hello.

CALLER: Hello, Rush. I can't believe I finally got to talk to you after years and years and years.

RUSH: It's your big show biz break.

CALLER: Great. The reason why I called was about the Black Panthers not going to court. I just thought when you went to court justice is blind so if the justice is blind, why are they so afraid to go to court? I don't understand.

RUSH: Oh, yeah, you're speaking with the theory of blindness, judicial objectivity and so forth. What you're really saying is that these lawyers in the DOJ knew these guys were guilty, that's what Mr. Adams essentially told Megyn Kelly.

CALLER: Exactly.

RUSH: So that's why they're shutting it down. You go to trial and they're going to be convicted. There's evidence and we're not going to have that.

CALLER: (crosstalk) -- about O.J., too, and he got off.

RUSH: Yeah, well, we're not going to have the first black president, we're not going to have a black attorney general prosecuting the New Black Panthers. It just wouldn't look good, especially around election time.

CALLER: Whether it looks good or not America is supposed to be America, proud and free.

RUSH: No, it's what looks good.

CALLER: Well, that's too bad. Hopefully it changes in the years to come.

RUSH: Well, like I said yesterday, I still think that this stuff, at some point, these yawns, I'm not trying to disrespect the tea party, people are doing more than yawning, there are citizens engaged. I don't mean that. I'm just talking about the media in a day-to-day basis where there ought to be genuine shock and anger and outrage there's nothing but a bunch of yawns.

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