Kagan’s anti-constructionist view set the stage for a moment of considerable tension when Senator Jeff Sessions (R-Alabama) asked whether the nominee would describe herself as a “progressive” or a “legal progressive” in the mold of President Obama. Kagan declined to answer the question directly, even claiming at one point to be unclear as to the meaning of the latter term.
It is not credible, however, that Kagan is unaware that progressivism, since its earliest days, has viewed government as an “evolving” and “living” entity, which, like all living things, must constantly adapt to changing circumstances. Indeed it was progressives who coined the term “living Constitution,” connoting the idea that the U.S. Constitution is a malleable document with no permanent guiding principles – a document that must, of necessity, change with the times.
In the progressive worldview, the proper role of government is not to confine itself to regulating a limited range of human activities as the founders stipulated, but rather to inject itself into whatever realms the times seem to demand. Progressives reason that although America’s founders felt it necessary to limit the power of government because of their experience with King George III, government today no longer represents the type of potential menace it once did; rather, progressives see government as being capable of solving an ever-greater array of societal problems – problems the founders could never have envisioned. Consequently, they call for an ever-more activist government whose intrusion into, and regulation of, people’s lives is properly determined not by the outdated words of an anachronistic Constitution, but by whatever the ruling elite deem necessary at any given time. By logical extension, this translates also into a call for an activist Supreme Court that is empowered to create, rather than merely interpret, law – always under the righteous banner of social justice.
According to R.J. Pestritto, author of American Progressivism, the early progressives “detested the Constitution, which places permanent limits on the scope of government and is structured in a way that makes the extension of national power beyond its original purpose very difficult.” Thus the progressives’ mission was to move beyond the principles laid out by the founders. They have continued that tradition to this day. Elena Kagan, poised to sit on the Supreme Court for perhaps two or three decades, is a vitally important part of it.
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