What is the Law?

What is the Law?
Cal Thomas
Thursday, May 13, 2010

We are told by no less than President Obama and supporters of his nominee to the Supreme Court, Elena Kagan, that she "loves the law."

I love my cat, but what does loving the law mean for the court, for the law and for the public?

What is the law? Is it a game played by insiders who went to Harvard (or Yale) law schools and the intellectual equivalent of theological debates over how many angels can dance on the head of a pin? Or is it something else, and if something else, what?

The classical view of law is that it is meant to restrain lawbreakers. But in order to define a lawbreaker, one must have a standard for law so that people know it when they break it. The modern ("progressive" as Kagan has been called) view of law is that it is to serve the political ends of those in power. This is why we hear so much talk about Kagan being in touch with "average," or "regular" people, as opposed to above and below average and "irregular" people I suppose.

The classic view of law is something quite different. Expressed by the English jurist William Blackstone -- who, if he is studied at all at Harvard and Yale, is most likely treated as a relic with nothing to say to us moderns -- is that the law began in the Mind of a Higher Authority. Blackstone expressed it this way: "No enactment of man can be considered law unless it conforms to the law of God."

Blackstone's philosophy was not insular, but served a larger purpose. As he expressed it, a law rooted in the ultimate Lawgiver, means, "The law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind."

In other words, if the law is a kind of judicial floating crap game, no one can say at any given moment where the "game" is being played or what the outcome might be. But law that is fixed and conforms people to a recognized standard promotes the general welfare -- as opposed to political interests -- and even increases civil liberties.

That's the kind of law I want and the kind of law the public should desire if it fully understood what is at stake in these debates about the Supreme Court. But Elena Kagan appears not to embrace this type of law. Neither is it how the progressive President Obama views the law. The president believes the law should serve his political goals.

In the pursuit of those goals, the president has selected someone from a legal cocoon. Senator Patrick Leahy, the Vermont Democrat who chairs the Judiciary Committee, has praised Kagan's qualifications and "real-life experience" outside the courtroom. Vice President Biden calls her "Main Street."

In fact, her experience, as noted by the Politico Website, "draws from a world whose signposts are distant from most Americans: Manhattan's Upper West Side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment."

One of the several talking points about Kagan is that she is a "moderate liberal." In fact, Ron Klain, Vice President Biden's chief of staff, has called Kagan a "legal progressive." That seems about right because in college she lamented the decline of the socialist movement. If she is asked about that at her confirmation hearings, expect her to say she has "matured" since her days as a student. The question should be: "But have you converted from your embrace of socialism and on what basis? A love for capitalism and the Constitution?"

Democrats have the votes in the Senate to confirm her, but Republicans ought to use the process to further expose where this progressive president wants to take us: away from true law, William Blackstone and our nation's founders or toward the remaking of America in his image?

Should this be an issue in the November election? Indeed, it should.