Will Elena Kagan Interpret the Law or Make the Law?

While the media is buzzing about the appointment of Elena Kagan to the Supreme Court and whether her views are progressive or liberal or moderate, the whole debate boils down to a simple question: Will Elena Kagan interpret the law or will she make the law?  Why is this such an important question to ask, especially for an economist?  Let’s talk about economics, economic freedom and the appointment of Elena Kagan to the Supreme Court right now!

For America’s Economy to grow, America needs free enterprise and free markets.  They are both essential and they both require economic freedom.  Entreprenuers and businesses (both large and small businesses) need the ability to find consumer needs and fill them in the most cost-effective way.  They need to be able to create new businesses, new products and new services.  In the process, they create new jobs and new economic growth.  The key to economic freedom is the U. S. Constitution.

Indeed, the U. S. Constitution guarantees our religious freedom, our political freedom, and our economic freedom.  Without the Constitution, we would not have become the richest, more prosperous, and most generous nation on the face of the earth.

The role of the Supreme Court is to interpret the laws of the land in light of the Constitution.  It is not to make law.  Progressive socialists (or if you prefer, progressives) see a different role for the Supreme Court.  They believe the Supreme Court should promote progressive (aka socialist) ideas and policies.

Indeed, progressive socialists over the years have attempted to thwart the original intent of the Constitution and in so doing, to restrict or limit or eliminate our freedoms.  Progressive policies have damaged our economic liberty and the American Economy.

To me, there is no need to hold lengthy Senate hearings filled with vague discussions.  Rather, a few direct questions and answers will suffice to determine her suitability for the Supreme Court.  If I were allowed to ask Elena Kagan three questions, here’s what they would be:

  1. Will you “interpret the law” in such a way as to follow the original intent of the U. S. Constitution?
  2. Will you “make the law” based on some other judicial or political philosophy instead of the U. S. Constitution?
  3. Will you interpet the law or make the law?

The best answers would be: Yes, No, and Interpret the Law according to the U. S. Constitution.

While most people don’t equate economic growth and prosperity with a Supreme Court appointee, maybe they should think about what judicial philosophy will result in maintaining the U. S. Constitution and our vitally important economic freedom.

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