Coburn made the following statement about Kagan:
"I think the thing that's very worrisome is that she has a very expansive view of the Commerce Clause, and I find that she's ignorant of the Constitution's limitation of that, especially what our Founders wrote,” Coburn, R-Okla., told us.It is pretty bizarre to call a potential judge "ignorant" for refusing to overturn decades of established caselaw. It is even more bizarre to describe Brown v. Board of Education as reflecting the "original intent" of the Framers of the Fourteenth Amendment.
“And her reliance was that, ‘Well, here's the precedent that's been set, and we can't go back to original intent,’ which comes back to another thing that she said earlier in the hearing -- is that precedent trumps original intent. And I think most Americans would reject that. If that was the case, then we would have never had Brown vs. the Board of Education, and Plessy-Ferguson would still be the law. And to have a Supreme Court nominee that actually says precedent trumps original intent is worrisome, in my opinion.
Legal historians have written many articles on this subject. Most of the leading scholarship concludes either that the Framers would not have supported the result in Brown or that their opinion on the subject is inconclusive. In Brown, the Court itself concluded that the original intent was unclear on this issue.
If Coburn is uncomfortable with this fact, perhaps he should reject originalism as a tool of constitutional interpretation. Distorting history, however, is not an intellectual choice.
Coburn also said that Kagan believes there are "no limits" to the Commerce Power by Congress. This is an absolute lie. Current precedent, which Kagan embraces, contains judicially imposed limitations and has resulted in the invalidation of laws in recent years, most notably an anti-gun law and a portion of the Violence Against Women Act. Even conservatives like Justice Antonin Scalia, however, agreed that Congress could regulate the consumption of homegrown marijuana for medicinal purposes (i.e., pot that is neither sold or bought on the market). Coburn's anger is unprincipled and misguided.