In her Supreme Court confirmation hearings, Elena Kagan said she is a political Progressive and was dismissive of the Declaration of Independence, relying solely on the Constitution for legal decisions. That's a consistent position; Progressives don't like what the Declaration declares.
U.S. courts follow stare decisis, meaning "to stand by that which has been decided before." They are supposed to follow established precedents; judges aren't to make things up as they go along. There are legislators for that.
That leaves Progressives like Ms. Kagan stranded. Consider: U.S. law is the present end of a long line extending back through Western societies via England, Rome, and Jerusalem. U.S. law is firmly in the Judeo-Christian tradition, a looming presence in which are the Ten Commandments.
Progressives are threatened whenever God turns up because they want to make the rules themselves; they don't want rules that, because they were handed down by God, they can't control. For Progressives, God is intolerable, stare decisis is a rock, and Judeo-Christian law is too hard a place. For escape from history, they rely on that river in Egypt, denial. If they ignore the Judeo-Christian dragon, maybe he will go away. They note the Greco-Roman legal foundation of Western law, but the Roman adoption of Christianity via Emperor Constantine seems too minor to be news.
Back to Ms. Kagan and her dismissal of the Declaration of Independence: Progressives say the law comes from the Constitution, which does not mention God; it just prevents government from setting up any official church or interfering with anyone's practice of religion. For a Progressive, the only authority is an amendable, interpretable Constitution, adopted by an act of We, the People who felt like doing it.
But there's a glitch. A free, independent people can adopt a constitution for themselves. But the Americans were subjects of George III, neither free nor independent. They were legally bound by English law. They changed that with the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of those ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation of such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
This is a lot of trouble for a Progressive; not only do rights come from a higher Authority, but they are unalienable! Government has only the power that the governed consent to provide it! And if the government isn't doing as it ought, the people can change it or toss it. Progressives who know what is good for the citizens and wish to use government power to make sure they get it whether or not it's wanted can't deal with that; they have to dismiss it.
But the Declaration of Independence by the Continental Congress is the legal foundation for the Constitution that followed; subjects of King George lacked authority and jurisdiction to adopt a constitution. The Declaration was necessary to separate the Continental Congress and the United States from King George. Without it, they were only rebellious subjects. That is why it was done in God's name; His Authority was required to overrule the King's. The Declaration is the clear statement by the Founders of the principles they built upon. When Progressives dismiss it, they are also providing a clear statement of their own principles.
That's a basic element of political freedom. If a citizen has unalienable rights because they are conferred by God, no politician can deprive him of them. If the citizen's rights were conferred by men, then men can deprive him of them. That is what Progressives choose to believe; their view of freedom says it is backed only by politician's promises.
Progressives further prefer situational ethics, which is a belief that there are no objective, unchanging rules for right and wrong, but only whatever is best in the circumstances. They usually assume that they will be making that decision -- an interesting mindset for a judge supposed to follow precedents.
So there are on the right hand the Founders' unalienable rights adopted by the Continental Congress with the Declaration of Independence and further explained in the Constitution, and on the left hand, the Progressives offer alienable rights subject to their interpretation by ignoring the Declaration. The Founders believed in the rule of law, not of men; the Progressives believe in the rule of men who select the laws they prefer and ignore what they don't want to know.
The voting citizens have to decide which belief to empower and live with the result.
American Thinker
