The leftist mind of Elena Kagan

Paul K. writes:

From the transcript of the Supreme Court hearing yesterday, we have an insight into the brilliant legal mind of Justice Elena Kagan in this exchange with Paul D. Clement, a lawyer arguing against Obamacare. They are debating whether the authority the federal government is assuming is coercive. Kagan thinks that it is not, because the federal government is giving states “a boatload of federal money for you to take and spend on poor people’s healthcare” (her words).

Clement insists that this money comes laden with coercive conditions, so Kagan presents this hypothetical:

JUSTICE KAGAN: Now, suppose I’m an employer, and I see somebody I really like, and I want to hire that person. And I say, I’m going to give you $10 million a year to come work for me. And the person says, well, I—you know, I’ve never been offered anywhere approaching $10 million a year. Of course, I’m going to say yes to that. Now we would both be agreed that that’s not coercive, right?

MR. CLEMENT: Well, I guess I would want to know where the money came from. And if the money came from—

JUSTICE KAGAN: Wow. Wow. I’m offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?

MR. CLEMENT: Sure, if I told you, actually, it came from my own bank account. And that’s what’s really going on here, in part.

Touché! But Kagan cannot comprehend this obvious point. Being a liberal, she assumes money is something the federal government dispenses from its limitless supply.

Law professor Ann Althouse wonders, “Has a Supreme Court [justice] ever said “Wow. Wow” before?”

LA replies:

Devastating. The quasi communist Kagan (and she’s not only communist but arrogant and superficial) has no notion of liberty or even of basic right. The only value for her is, “what are you getting”? And if you’re getting a lot of money from the government, which the government has expropriated from other people (or even from yourself), then you happily give the government complete control over your existence and you have no complaints. In Kagan’s book, you are “free,” because the government is supporting you. And this has always been the communist definition of freedom. The Communists said that Americans were not free, because all of our needs weren’t taken care of. But now, as Pelosi says, we are truly free for the first time, we are finally putting the Declaration of Independence truly into effect, because now people can pursue their dreams and desires—quit work, be an artist—without having to worry about losing their health insurance.

Also, this shows how liberals-leftists believe that once you get any support from the government, no matter how small, they already own you, and you have no right to object to any further expansion of government power. Once you receive, say, Social Security, you have no right to object to the government taking over the entire health insurance industry, and then the entire economy. In the leftists’ book, if you receive any government benefit, and you object to Obamacare, or to totally subsidized birth control and sterilization, or to sex change operations for criminal illegal aliens, you are a hypocrite.

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Buck writes:

I listened to the full audio of day two and three and was stunned by that exchange. That should have been, not only embarrassing, but devastating to any thinking person hearing it. Elena Kagan is a sitting justice on the United States Supreme court, and actually thinks, like the Obama voters, that “Obama-money” comes from some magic “stash.”

Paul T. writes:

Perhaps counsel’s reponse should have been “With respect, Your Honour, the analogy of a prospective employer offering a prospective employee $10 million has no application here, since the employer-employee relationship is not governed by the Constitution of the United States, but by the private law of contract. The Affordable Care Act is not proposing a voluntary contractual arrangement.” As for Kagan, I’ve heard better judicial reasoning in Small Claims Court.

Bruce B. writes:

You wrote:

“Also, this shows how liberals-leftists believe that once you get any support from the government, no matter how small, they already own you, and you have no right to object to any further expansion of government power.”

I think this is a common mindset among the left. A caller ( a leftist Catholic woman) was arguing with Hannity a few weeks back about Catholic hospitals being forced to provide contraception coverage to their employees. Her argument was that the Catholic hospitals receive government money (don’t know if this is true or not) so they can’t object to the contraception requirement.

Kristor writes:

You write:

In the leftists’ book, if you receive any [support from the government], and you object to Obamacare, or to totally subsidized birth control and sterilization, or to sex change operations for criminal illegal aliens, you are a hypocrite.

They’re right about that, aren’t they? Once you have derogated to the government the responsibility for any part of your life, what principled objection can you mount to any such derogation? I mean, sure, I have edited your statement, replacing “government benefit” with the not-quite-equivalent “support from the government” that you used earlier in the paragraph. But you see what I mean. Social Security and welfare—support from the government—are different in kind from national defense and the judiciary and penal systems. The latter sorts of government benefits don’t entail surrendering responsibility for our lives to the government, whereas the former do. It is the surrender of responsibility for our lives, and thus the loss, not so much of individual autonomy (for no one in a coherent society, properly speaking, ever enjoys very much of that), as of individual authority, that punctures the membranes between domains of authority that the Constitution—or any well-ordered society—maintain between individual and state.

I have a sudden hunch that a confusion between autonomy and authority may lie at the root of the liberal beef with traditional society. Liberals are all about preserving and extending the domain of autonomy, and in the process they destroy all authority—not just of the individual, to act as master of his own destiny, but of the parent, the teacher, the pastor, the boss, ultimately even the authority of the state itself. All are gutted, in favor of maximum personal autonomy: the capacity of the individual to determine his own meanings and purposes for the universe, so far as he himself is concerned. This is why liberalism tends to social decoherence; to chaos and confusion. So the liberal beef with traditional society turns out in practice to be a beef with society as such.

Authority is different from autonomy. Authority derives from creative activity. The father’s authority qua father derives from his act of creating and maintaining a family; as likewise the mother’s authority from hers. The master’s authority in his art derives from his practice thereof. The boss’s authority derives from his mastery, or from his entrepreneurship. And so on. Authority, then, must be earned. And there is a certain de minimis degree of authority that goes along with being a free man, who is at least his own master, who is responsible for procuring to himself the continuation of his own life and welfare. It is this de minimis degree of authority that one surrenders to the state, or to any master, when one accepts an unearned benefit that is not a free gift, given in love, or that is not a grant, given in respect. Any unearned benefit creates an ontological and moral obligation to the benefactor: the recipient of a research grant is obliged to carry out the research, and the recipient of a gift is obliged to fulfill at least the formal criteria of closer friendship—namely, a reciprocation of love. This is why grants and gifts are not unmixed blessings. Yet they do not at all constrain the personal authority of the recipient.

But the unearned benefit that is not given in love or respect creates also a political debt to the benefactor. It creates a condition of at least partial enslavement; for the benefactor, as effectual creditor, has a political claim upon the resources of the debtor, and of his life’s capacity, to the exact degree of the debt outstanding. Such transfer payments constrain the personal authority of the recipient. When he derogates responsibility for his life, he derogates authority over his life. He is no longer a free man. He is a serf.

Liberals hate authority, and love autonomy. Why? Because the reciprocal of authority is duty, and duty constrains autonomy. In a relationship characterized by authority, both parties are constrained by duties; the authority of the master over the apprentice creates duties for both of them. The same goes for parent and child, lord and vassal, polis and citizen. And even the de minimis personal authority of the free man comes with an irreducible slug of duty: the duty to behave lawfully, and responsibly, and rationally, and to perform the duties of a citizen (e.g., military service, jury duty, etc.)—to behave, that is, as if the free man bore some personal responsibility for the integrity of society (as, in sheer fact, he obviously does).

This is poorly worked out, so far, because I am still in the middle of the brainstorm.

Bearing this notion of the difference between autonomy and authority in mind, it is interesting to consider the difference between welfare delivered by the state and charity delivered by the charitable. The latter is a gift, given in love, and so creates no political obligation; the former is not, and does.

Posted by Lawrence Auster at March 29, 2012 10:02 AM | Send