Over the next day or two we will be hearing much about why US Senators will be voting in favor of or against the confirmation of Ketanji Brown Jackson to the US Supreme Court. Many of those who will vote for her confirmation will state that they believe her to be qualified as a jurist. Others who will do not support her will cite examples of her judicial decisions regarding the sentencing of child pornographers or speak to her inability to define the term “woman”. Some will cite her past record on abortion as other reasons not to vote for her. And, yes, that particular record alone is enough to vote “no” on her confirmation.
But what is even more telling is that many pundits are not telling the public about her legal philosophy in general. While Ms. Jackson tried to be coy about her judicial philosophy during the hearings and many mainstream media pundits are trying to make the claim that she is highly qualified to be on the US Supreme Court, there is real evidence that exists that shows her philosophy of law actually disqualifies her from being on the highest court of the land.
A recent article published in Red State highlights just a few written questions that were asked by US Senator Ted Cruz (R-TX). This method of questioning is common for those going through the confirmation process as it allows for more in depth questioning and allows for some questions to be asked that may not otherwise be asked during committee hearings due to time constraints. In his sixteenth question to her, Senator Cruz asks, “Do you hold a position on whether individuals posses natural rights, yes or no?” This question was posed just after Senator Cruz posed a question on the inalienable rights in the Declaration of Independence. Ms. Jackson’s response to the sixteenth question was simply, “I do not hold a position on whether individuals posses natural rights.”
This is a troubling answer for many reasons. The whole of the US Constitution is predicated on the reality that natural rights exist. That the founding document, the Declaration of Independence, helps enumerate the most obvious of these natural rights, life, liberty, and the pursuit of happiness. Now, some may ask, why exactly is this troubling? The answer is fairly obvious, the truth that we have a right to life stems from a moral duty, not something granted by the government. It is from the moral duty not to harm, and especially not to kill innocent human beings, stems the right to life. So, when the Founding Fathers spoke of these rights being “endowed by their Creator” they are speaking of these natural rights that are inalienable, meaning they exist because we are moral beings, prior to any government. They exist because we are human, they are not given to us because government grants them. Rather, government exists to ensure the protection of these rights.
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By her avoidance in properly answering the question, she has certainly indicated that she does not believe in natural rights. So, what does this mean? Firstly, it is extremely likely that Ms. Jackson’s legal philosophy is that of a legal positivist. But what does that mean you may ask? It simply means that she does not believe in natural rights, but rather rights are granted by the government. Secondly, it is also extremely likely that, as a result, she believes that those who have the authority (legislators) have not only the ability to grant and make rights, but judges and justices have the authority to interpret them into existence. So, while it is clear there is no right to abortion within the text of the Constitution, nor is there any implication of a so-called right to abortion, judges, according to this philosophy, can simply interpret the text of the Constitution and other case law to make a right to abortion where one did not exist before.
This kind of legal philosophy is not what the Fo
unding Fathers had in mind. By adhering to a philosophy that clearly stands against a philosophy of natural rights, Ms. Jackson has immediately disqualified herself from being considered from the high bench. US Senators, especially pro-life Senators, need to vote against her confirmation. If there are no natural rights and, thusly, no natural right to life, there really is no basis for rights in general. If a pro-life Senator is unable to understand this basic concept, then he/she has no business being an elected official that is sworn to uphold the US Constitution.
It is evidently clear, that Ms. Jackson will be ruling on a philosophy that is not in accord with the highest law of the land. The document relies on moral principles that are unchanging. State and federal laws are to be judged on an interpretation of the Constitution that is rooted in the very idea of natural rights. Sadly, as stated at the beginning of this article, many mainstream pundits are pushing for her confirmation. It is clear that they either have no understanding of the US Constitution or they simply want a radically different philosophical approach that is actually contrary to proper US Constitutional interpretation. This radically incorrect approach not only harms the integrity of the document, the end result is that it harms the citizenry as well.
In the end, any Senator, who claims to be pro-life and votes to confirm Ms. Jackson, will not only be violating pro-life principles, they will be voting to put someone on the bench who simply is not qualified to be there by her very statements on the essence of natural rights.
LifeNews Note: Joe Kral, M.A., is the President of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.