Supreme Court nominee Elena Kagan seemed taken aback when asked a simple question at her confirmation hearings: "Are you a legal progressive?"
"I honestly don't know what that label means," Kagan said.
Let's help professor Kagan out. McDonald v. Chicago, the Supreme Court's decision on gun control this week, provides a pretty good window into the key differences between legal progressivism and a more restrained judicial approach.
Judicial restraint does not mean the Supreme Court doesn't vigorously enforce the rights that are in the Constitution. It means a justice doesn't creatively interpret text to protect rights that are not in the Constitution -- or worse, to ignore those that are. These two things often go hand in hand.
How can you spot a legal progressive? A legal progressive is someone who believes rights that are not stated in the Constitution, but inferred or extrapolated, should be given more weight than rights plainly enumerated.
A legal progressive is someone who knows there is a fundamental constitutional right to gay marriage, for example, even though the Constitution says nothing directly about marriage, but that a law-abiding individual has no right to own a gun, even though the Constitution clearly states that "the right of the people to keep and bear arms shall not be infringed."
A legal progressive believes that sexual liberty trumps religious liberty, even though the Constitution says nothing about sex, and guarantees explicitly the right to free exercise of religion. The Constitution mysteriously confers an unlimited right to an abortion, but the core right to life mentioned in the due process clause is reserved for criminals facing the death penalty. Human beings living in their mother's wombs need not apply.
I could go on and on. Very smart people have developed very sophisticated legal rationales for their views. But they come down to saying, "Words mean what I want them to mean, if necessary." Words express values, values evolve -- therefore, a legislature that passes a law or a constitutional amendment never knows what it will mean. That's up to judges to decide.
The authority of the democratic process is thus as thoroughly undermined by legal progressivism as is the legitimacy of the Constitution.
Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.
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