Bell, via Kagan, on Critical Race Theory: The Constitution Is the Problem

In November 1985, the Harvard Law Review published an article by Derrick Bell that was a “classic” in the development of Critical Race Theory. The article was edited by then-student Elena Kagan, and was cited by Prof. Charles Ogletree in support of her nomination to the U.S. Supreme Court by President Barack Obama in 2010. The article makes clear that Critical Race Theory sees the U.S. Constitution as a form of “original sin”–a view later embraced by Obama as a state legislator, and reflected in his actions and appointments. The following is an excerpt from the non-fiction portion of the article; much of what follows is a fictional story that Bell intended as a parable of racial “fantasy.” (99 Harv. L. Rev. 4)

At the nation’s beginning, the framers saw more clearly than is perhaps possible in our more enlightened and infinitely more complex time the essential need to accept what has become the American contradiction. The framers made a conscious, though unspoken, sacrifice of the rights of some in the belief that this forfeiture was necessary to secure the rights of others in a society embracing, as its fundamental principle, the equality of all. And thus the framers, while speaking through the Constitution in an unequivocal voice, at once promised freedom for whites and condemned blacks to slavery….

The Constitution has survived for two centuries and, despite earnest efforts by committed people, the contradiction remains, shielded and nurtured through the years by myth. This contradiction is the root reason for the inability of black people to gain legitimacy — that is, why they are unable to be taken seriously when they are serious and why they retain a subordinate status as a group that even impressive proofs of individual competence cannot overcome. Contradiction, shrouded by myth, remains a significant factor in blacks’ failure to obtain meaningful relief against historic racial injustice.

The myths that today and throughout history have nurtured the original constitutional contradiction and thus guided racial policy are manifold, operating like dreams below the level of language and conscious thought. Much of what is called the law of civil rights — an inexact euphemism for racial law — has a mythological or fairy-tale quality that is based, like the early fairy tales, less on visions of gaiety and light than on an ever-present threat of disaster. We are as likely to deny as to concede these myths, and we may well deny some and admit others. They are not single stories or strands. Rather, they operate in a rich texture that constantly changes, concealing content while elaborating their misleading meanings.

When recognized, these myths often take the form of the missing link between the desire for some goal of racial justice and its realization. Black civil rights lawyers propound the myth that this case or that court may provide the long-sought solution to racial division. They fantasize and strategize about hazy future events that may bring us a long-envisioned racial equality. White people cling to the belief that racial justice may be realized without any loss of their privileged position. Even at this late date, some find new comfort in the old saw that “these things” — meaning an end to racial discrimination — “take time.” The psychological motivations behind the myths perpetrated by people of both races can be sufficiently complex to engender book-length explanations by psychiatrists. Racial stereotypes are also part of this suffocating web of myth that forms the rationale of inaction, but it is not necessary to catalogue here the myriad stereotypes about black people that have served since the days of slavery to ease the consciences of the thoughtful and buoy the egos of the ignorant.

The contemporary myths that confuse and inhibit current efforts to achieve racial justice have informed all of our racial history. Myth alone, not history, supports the statements of those who claim that the slavery contradiction was finally resolved by a bloody civil war. The Emancipation Proclamation was intended to serve the interests of the Union, not the blacks, a fact that Lincoln himself admitted. The Civil War amendments, while more vague in language and ambiguous in intent, actually furthered the goals of northern industry and politics far better and longer than they served to protect even the most basic rights of the freedmen. The meager promises of physical protection contained in the civil rights statutes adopted in the post-Civil War period were never effectively honored. Hardly a decade later, the political compromise settling the disputed Hayes-Tilden election once again left the freedmen to the reality of life with their former masters. Finally, the much-discussed “40 acres and a mule,” hardly extravagant reparations for an enslaved people who literally built the nation, never got beyond the discussion stage.

Read more here.

Justice Elena Kagan’s first vote is against an execution

Justice Elena Kagan cast her first vote on the Supreme Court late Tuesday, joining the liberals in dissent when the high court cleared the way for the execution of an Arizona murderer.

The 5-4 ruling overturned orders by a federal judge in Phoenix and the U.S. 9th Circuit Court of Appeals in San Francisco that had stopped the execution by lethal injection of Jeffrey Landrigan.

His lawyers, in a last-ditch appeal, had raised questions about one of the drugs used in the execution. Since the only U.S. manufacturer of sodium thiopental had suspended production, Arizona officials said they had obtained a supply of the drug from a British company.

Why Kagan Is Unqualified — and Dangerous

Despite being thoroughly unqualified to occupy the bench, Elena Kagan will most likely be confirmed to the Supreme Court. This is because most of our hundred senators are almost as unqualified to judge a judge as she is to be one. What is the proper criterion to apply? Well, a simple analogy illustrates the point best.

Let’s say you needed to hire a football referee. If he said that he was a “pragmatic” referee, who viewed the rule book as “living” and thus would interpret the rules to suit the “times,” would he be your man?

Since it’s the job of the rule-makers to craft the rules, and the referee’s role is only to determine if they’ve been broken, I think you’d be aghast. It would be obvious that you were dealing with someone who didn’t know what his job was or was unwilling to perform it. And you certainly wouldn’t want to hire a referee who was giving himself the latitude to say, “This fellow here violated a rule, but since I don’t like that rule, I’m going to let his action stand” or “That guy over there has gone by the book, but I don’t like something he did, so I’ll penalize him anyway.”

A judge’s job is analogous to a referee’s. It is the legislature’s (rule-makers’) place to make the rules, and the judge’s only role is to determine if they’ve been broken. How he feels about a given law is irrelevant. He is but a gatekeeper.

Yet there is a difference between the two examples: While people could easily grasp this if the matter were a frivolity such as sports, they entertain the most inane rationalizations when the issue is our national rulebook, the Constitution. They then allow judicial con artists to muddy the waters with specious concepts such as the “living document,” interpretations that suit the “times” and “pragmatism.” They take people such as Ruth Bader Ginsburg seriously when she says the Constitution shouldn’t be “stuck in time.” (It’s not. It’s stuck in law, which can be changed through the Amendment Process.) But these are all dodges that distract us from the truth: There aren’t constructionists and pragmatists, times-oriented judges and text-oriented ones, living-document ones and originalists. At the end of the day, there are only two kinds of justices:

Good justices and bad justices.

Good justices do their job and abide by the Constitution. Bad ones don’t.

And Elena Kagan would be a remarkably bad justice.

Her history and words reveal this clearly. As Phyllis Schlafly recently wrote:

When Kagan was dean of Harvard Law School, she presented a guest speaker who is known as the most activist judge in the world: Judge Aharon Barak, formerly president of the Israeli Supreme Court.

… Barak has written that a judge should “make” and “create” law, assume “a role in the legislative process” and give statutes “new meaning that suits new social needs.”

Barak wrote that a judge “is subject to no authority” except himself, and he “must sometimes depart the confines of his legal system and channel into it fundamental values not yet found in it” [emphasis mine].

And how does Kagan feel about this man?

She calls him her “judicial hero.”

Now, such judges are often characterized as judicial activists, but that is too kind a term. They are Nullification Jurists — and they represent a profound danger to our republic. Let’s examine why.

John Stuart Mill once said, “I can hardly imagine any laws so bad, to which I would not rather be subject than to the caprice of a man.” Well, you can dress the Nullification Jurist fiction up any way you want, but at the end of the day, it is nothing but subjection to the caprice of a man in a black robe.

Think about it: Jurists may say they are interpreting the Constitution to suit the times, but who determines the “times”? The people do. And what are the implications of this “times” philosophy?

First, to abide by the “times” would be to render the Constitution unnecessary, for the very purpose of a constitution is to temper the times with the timeless. That is to say, a good constitution reflects enduring truths, not alluring fashions. It embodies the “votes” of not merely those walking about today, but of all those who have lived since our republic’s inception, for it exists only because the founding generation created it and subsequent ones tacitly approved it by allowing it to stand. It represents the democracy of the whole family of man — including his ancestors.

This stabilizing factor is important because, even collectively, people are prone to fits of emotionalism — to the caprice of men. And because a good constitution is hard to change, it forces a capricious citizenry to take a deep breath and count to ten, at which point the emotion may have subsided and cooler heads may prevail. It acts as a firewall against the mob-rule phenomenon.

Thus, to truly abide by the times would be to reduce us to what remains when you strip away both the Constitution and the legislature: a straight democracy. That is, a democracy with a little twist.

The votes are inferred by judges, who supposedly are infallible conduits of popular opinion.

This is how it could work in theory, anyway. But the reality is that most Nullification Jurists couldn’t care less about the “times.” Case in point: In recent years we’ve seen some state courts divine a right to faux marriage in their state constitutions. But since a majority in every one of those states opposes faux marriage, were the judges really interpreting their constitutions to suit the times? Sure, if it was The New York Times.

The truth is that “living document,” the “times,” and “pragmatism” are nothing but weasel words that facilitate rationalization and obscure Nullification Jurists’ true modus operandi. What is this? Well, since they aren’t abiding by the Constitution or the times, there is only one thing left: what feels right to them.

This mindset isn’t unusual, as people have always found a rationale for their tyranny. For a long time, we had the Divine Right of Kings, stating that a monarch governed according to God’s will and thus wasn’t subject to the will of the people, or any other worldly authority, and that he could do no wrong. Relativists are even worse. A person such as Stalin, Mao, or Pol Pot deified himself, made his worldview (based on what felt right) the little god’s law, and believed he was “subject to no authority except himself.” Sound familiar?

It also sounds dangerous. And we should all be enraged. Remember that while government is supposed to derive its just powers from the consent of the governed, the jurists in question are doing nothing less than nullifying our votes. For they are ignoring the law, which reflects the will of the people as expressed through duly elected representatives. These judges aren’t channeling democracy — they are stealing it.

So what is the solution? Note that Nullification Jurists have signaled their contempt for the law loud and clear. And if they won’t submit to the rule of law, why should we submit to the rule of lawyers? If they won’t accept that the Constitution is “stuck” in law, why should we accept that the law is stuck in courts? Let me be clear: There is neither a moral nor a legal obligation to abide by the rules of the game when judicial oligarchs have brazenly said they will game the rules. Being a Nullification Jurist is a constitution-breaker, a republic-breaker, and, my fellow Americans, a deal-breaker.

The fact that an Elena Kagan could even make it to hearings is already a confirmation. It confirms that most of our leaders haven’t a clue as to how a constitutional republic is supposed to work or, worse still, are content to create an oligarchy of like-minded judicial statists. It is unlawful and renders the government illegitimate, but they do it because they can. And unless we Americans wish to be subject to those who are “subject to no authority except themselves,” governors and citizens should remember this: Nullification works both ways.

Day 1 of Senate hearings offers tale of 2 Kagans

WASHINGTON (AP) – Elena Kagan strode into Day 1 of her confirmation hearing for the Supreme Court with a broad grin and a bounce in her step. She emerged nearly four hours later with her smile intact, and bearhugs aplenty for family and friends.

In between, Kagan sat stone-faced, barely even blinking, before the Judiciary Committee and heard a Republican rundown of everything that’s wrong with her.

Those GOP digs were interspersed with effusive praise from Democrats for whom she could do no wrong.

To those hearty souls who tuned in to C-SPAN on Monday it must have sounded like a tale of two Kagans.

Alabama Sen. Jeff Sessions, the ranking Republican on the panel, previewed the GOP lines of attack—reaching all the way back to her college thesis on socialism, which he said “seems to bemoan socialism’s demise.” Iowa’s Chuck Grassley said she’d been a “political lawyer.” Arizona’s Jon Kyl complained about her choice of judicial heroes. Utah’s Orrin Hatch wondered aloud if she would be controlled by the Constitution or try to control it.

For every GOP thrust, there was a Democratic parry.

Committee Chairman Patrick Leahy of Vermont called her legal credentials “unassailable.” California’s Dianne Feinstein called her lack of experience as a judge “refreshing.” Sen. Russell Feingold of Wisconsin spoke of her “thoughtfulness and openness.” Sen. Charles Schumer said her “brilliant” record was clear and complete, declaring: “The only thing as far as I can tell that we don’t have is her kindergarten report card.”

When at last Kagan got her own chance to talk, after all the senators had had their say, she spoke carefully, deliberately—almost in slow motion—fingers on the witness table before her. There was no reference to the thrashing she’d taken from the Republicans. Just sentimental recollections of her upbringing and pledges of fealty to fairness and to the law.

Back-and-forth with the senators would have to wait one more day.

It was a low-key beginning to hearings that are expected to end with approval of Kagan’s nomination, barring unforeseen revelations or major missteps on her part.

While senators stuck largely to the expected script, a small band of protesters tried to liven things up in the withering heat outside, demonstrating against both Kagan’s nomination and Republican senators for not fighting her with more gusto.

Anti-abortion activist Randall Terry escorted a dancing chicken around to jab at Republicans’ apparent unwillingness to filibuster Kagan. With Terry helpfully interpreting the chicken’s squawks, the big bird explained that Republicans “don’t think they have the votes and they don’t want to have egg on their faces.”

The chicken turned out to be a multi-tasker. His yellow suit was stuffed into a knapsack, and the chicken quickly transformed himself into a black-hooded grim reaper. Randall and the reaper headed over to the Supreme Court to protest Justice John Paul Stevens’ last day on the bench.

The heat didn’t deter a a few hundred civic-minded Americans from queuing up outside the Capitol for a seat in the hearing room. Audrey Smith, a homemaker from Calverton, Md., was up at 4:30 a.m. to take the bus and subway downtown to see “a woman who’s going to take the seat of a man on the Supreme Court.”

“I’m for women progressing,” she explained.

Not far behind her in line was 20-year-old Matthew Simari, a political science student from Wake Forest University doing research in Washington this summer on the media and politics. He was hopeful for a few more fireworks than during last year’s hearings on the nomination of Sonia Sotomayor.

Kagan is “probably the sassiest” of recent nominees, he said. “She’s very opinionated.”

But pressed on whether he really expected Kagan to really let loose, Simari predicted, “To be honest, she’ll probably keep quiet” on contentious issues.

“You always kind of feel cheated by these things,” he said.

Jewish Clergy Group: Elena Kagan Isn’t ‘Kosher’ to Serve on Supreme Court

Rabbi Yehuda Levin, spokesman for the Rabbinical Alliance of America. (Photo courtesy of the Alliance)

( – Supreme Court nominee Elena Kagan is “not kosher” — meaning she is not fit to serve on the court — according to more than 850 Orthodox members of the Rabbinical Alliance of America. That’s the term the rabbis used about Kagan in a press release issued Thursday, saying “Elena Kagan is not kosher. She is not fit to sit on this Court — or any court.”

Rabbi Yehuda Levin, spokesman for the alliance, told on Thursday that “a great deal has been made about the fact that she would be the second Jewish woman on the court, and we want to signal to people across the country that we take no pride in this.”

Levin said most people are happy when “one of their own” is nominated to such a high position. But, he added, “We feel that Elena Kagan turns traditional Judaism on its head – from a concept of a nation of priests and holy people, she is turning it into, ‘Let’s homosexualize every segment of society. And by the way, partial-birth babies have no right to be delivered.’”

In a statement issued Thursday, the rabbinical alliance called on the Senate Judiciary Committee to refuse to confirm Kagan to succeed the outgoing Justice John Paul Stevens.

“It is clear from Ms. Kagan’s record on issues such as abortion-on-demand, partial-birth-abortion, the radical homosexual and lesbian agenda, the “supremacy” of the anti-family panoply over religious liberties of biblical adherents, et. al., that she will function as a flame-throwing radical, hastening society’s already steep decline into Sodom and Gomorrah,” the rabbis said in the statement.

Levin told that his fellow rabbis – and hundreds of thousands of Orthodox and traditional Jews – are puzzled at the president’s choice of Kagan.

“What exactly was Obama thinking, President Obama thinking, when he nominated Kagan? Because eventually, down the road, someone — or some group — is going to ‘take the hit’ for the crazy decisions that Kagan is bound to make. So we would have much preferred if President Obama had given this ‘distinction’ to another minority group, instead of singling out the Jews.”

Barring a rebuff from the Senate Judiciary Committee, Levin told that the rabbis want someone in the Senate to launch a filibuster to stop Kagan’s nomination from coming to a vote.

‘We’re waiting for the more courageous, decent senators – whether it’s a (Sen.) Jim DeMint (R-S.C.) or a (Sen.) Tom Coburn (R-Okla.) or a (Sen.) Jeff Sessions (R-Ala.) – we’re looking for them to stand up and filibuster this embarrassing endangerment of a nomination,” Levin said.

Confirmation hearings for Kagan begin Monday at the Senate Judiciary Committee. Neither Sen. Dianne Feinstein (D-Calif.) nor Sen. Russ Feingold (D-Wis.) — both members of the committee, known Kagan supporters and top Jewish members of the Senate — responded to calls for comment on this story.

Today’s PC police would arrest Abe Lincoln for sedition

By: Douglas MacKinnon

During his first inaugural address in 1933, Franklin Delano Roosevelt famously but inaccurately claimed that “the only thing we have to fear is fear itself.”

Leaving aside the fact that 77 years later, many of Roosevelt’s socialist leanings serve as a roadmap for President Obama, the inescapable reality of 2010 is that the only thing we have to fear is political unaccountability, an unethical media, liberal judicial activists, and those among us who want and demand something for nothing.

If you are a citizen who still believes in traditional values and the need for a free, strong and secure America, then it’s well past the time to make your voice heard.

At the risk of being accused of inciting sedition by ultra-wealthy, far-left “journalist” Joe Klein, I would stress if not now, when? If not you, who?

As an aside to Klein, who apparently, as he runs around purposely twisting the words of Sarah Palin, Glenn Beck, and Sen. Tom Coburn, R-OK, by claiming they come “dangerously close to incitement to violence,” has never read the writings of well-known seditionists Thomas Jefferson and Abraham Lincoln.

To that very point, Lincoln once said, “this country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it.”

Sacrilege. Had Lincoln uttered those very words today, Klein, the editorial board of The New York Times, and the inhabitants of the West Wing would have called for his imprisonment.

More than imprisonment, all but confirmed Supreme Court nominee Elena Kagan would have stated Lincoln’s belief deserved no First Amendment protection.

That assumption being based on the liberal Kagan’s own words who has chillingly said in the past, “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

While Chief Justice Roberts called Kagan’s argument “startling and dangerous,” the mainstream media has done all in its power to keep this totalitarian declaration from the American people.

Beyond liberal judicial activism and the propagandists for the far-left in the media, our welfare, security, and very existence are being threatened by elected officials from both sides of the aisle who see the rapidly descending blade and purposefully ignore it as they suicidally focus on their own selfish needs.

Were it not for the fact they are about to take the rest of us with them, their extinction would be a welcome relief.

To ensure the demise of our once great nation, we are also being assaulted by an unimaginable and lethal U.S. debt combined with the out-of-control salaries and pensions of local, state, and federal employees and the unions who seek to protect and grow that money at any cost.

As one county employee in Maryland recently told me, “As long as I get mine, I honestly don’t care about the rest of the country.”

While we all now recognize that Los Angeles and California are the Athens and Greece of the United States, we need to understand that they are but the poster children for what is about to befall us.

On a recent trip to Miami, I was disturbed but not shocked to find out that while the median income for the hardworking citizens of that city is about $26,000, the median income of the city employees is about $76,000. Triple that of those who pay their salaries.

Worse, thanks to union threats and liberal leaders, almost 100 city workers in that all but bankrupt city “earned” over $200,000. Can you say “unsustainable?”

Roosevelt was wrong, as are all today who believe in something for nothing. It’s not fear we have to worry about.

It’s the minority among us who deliberately steal, lie, brainwash our children, and leave our borders and nation unprotected, that we have to not only shield ourselves from, but defeat before it’s too late.

That is the calling for the majority. Let us hope it does not fall on deaf or compromised ears.

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