Limbaugh's newest ridiculous attack: Kagan “doesn't like the Constitution”

Rush Limbaugh claimed that Supreme Court nominee Elena Kagan “doesn't like the Constitution” because, in 1987, she reportedly expressed her worry that the Court would hold that “the Constitution is a charter of negative rather than positive liberties.” In fact, Kagan reportedly made these statements during her tenure as a law clerk for Justice Thurgood Marshall, and they are in accordance with Marshall's views on the Constitution. Therefore, they are not necessarily reflective of Kagan's personal views, and, in any event, they are representative of the views of a respected Supreme Court justice on the meaning of the Constitution.

On the May 18 edition of his radio program, Limbaugh highlighted a portion of a blog post by National Review Online's Ed Whelan in which Whelan stated:

According to this Wall Street Journal article, during her service as a law clerk to Justice Thurgood Marshall in 1987, Elena Kagan took the position that the Constitution confers so-called “positive” rights to governmental aid, not just “negative” liberties protected against governmental interference or penalty. Specifically, with respect to one certiorari petition she expressed her “worry that a majority of this court will agree with Judge Posner that 'the Constitution is a charter of negative rather than positive liberties.'” And with respect to another, she discussed a lower-court ruling that, relying on “evolving standards of decency,” held that the 14th Amendment (in her words) “imposes [some] affirmative obligations on state officials,” and she opined that “the holding is correct.” (By “correct,” she evidently was referring to her best understanding of how the Constitution should be interpreted, not to the Court's then-prevailing case law.)

Limbaugh then added:

This is important, this negative rights versus positive rights. And we brought this up during the campaign. The lib -- the extremist libs today don't like the Constitution because they look at it as negative, meaning the Constitution says what government can't do to you. And they don't like that. They want a Constitution of positive liberties. I know it sounds convoluted, but what they mean by that is they look at this from the government perspective, not the citizens' perspective. They want a Constitution that says what the government can do for people, or in their case, to people.

The fact that Kagan reportedly wrote to Marshall that she was “worr[ied]” that a Supreme Court majority would embrace the concept that the Constitution is “a charter of negative rather than positive liberties” does not mean that Kagan necessarily believes herself that the Constitution protects positive liberties. As stated by the Wall Street Journal article that Whelan cited: “Law clerks often say they seek to reflect their boss's approach to the law, rather than promote their own. Ms. Kagan's current position on the legal question isn't clear.”

Furthermore, regardless of whether Kagan personally believes that argument, her comment is certainly not evidence that she “doesn't like the Constitution.” Indeed, Marshall himself -- a respected Supreme Court justice -- embraced the view that the Constitution established certain positive rights. In the 1989 case of DeShaney v. Winnebago County Department of Social Services, Marshall and Justice Harry Blackmun joined a dissent by Justice William Brennan suggesting that the Constitution does establish positive rights in some circumstances:

Because of the Court's initial fixation on the general principle that the Constitution does not establish positive rights, it is unable to appreciate our recognition in Estelle and Youngberg that this principle does not hold true in all circumstances.

Furthermore, in the 1973 case of San Antonio Independent School District v. Rodriguez, a case involving education, Marshall wrote in dissent: “In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record.”

Finally, it should be noted that Limbaugh's claim recalls his previous smear that "[t]he First Amendment is something that [Kagan] does not like." As with his comments today, Limbaugh's claims then relied on distortions of Kagan's comments.