Questions For Elena Kagan

from George Will and Rebellion:

Friday, June 25, 2010


Questions for Elena Kagan



George Will would like to see Supreme Court nominee Elena Kagan respond to the following, and so would I:





In 1964, Sen. Hubert Humphrey, a principal sponsor of that year’s Civil Rights Act, denounced the “nightmarish propaganda” that the law would permit preferential treatment of an individual or group because of race or racial “imbalance” in employment. What happened?



William Voegeli, contributing editor of the Claremont Review of Books, writes: “The astonishingly quick and complete transformation of the Civil Rights Act of 1964, from a law requiring all citizens be treated equally to a policy requiring that they be treated unequally, is one of the most audacious bait-and-switch operations in American political history.” Discuss.



Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?



In Federalist 45, James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?



I wish Rand Paul had brought up these points when he was under fire for his lukewarm critique of the unconstitutional 1964 Civil Rights act