George Will’s Questions for Kagan

Why would nobody have the cajones to ask the questions George Will suggested Sunday and Monday?

Personal favorites (get a grip, Tipsy; not too many now!):

  • If Congress decides that interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?
  • Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?
  • The Fifth Amendment mandates “just compensation” when government uses its eminent domain power to take private property for “public use.” In its 2005 Kelo decision, the court said government can seize property for the “public use” of transferring it to wealthier private interests who will pay more taxes to the government. Do you agree?
  • William Voegeli, contributing editor of the Claremont Review of Books, writes: “The astonishingly quick and complete transformation of the Civil Rights Act of 1964, from a law requiring all citizens be treated equally to a policy requiring that they be treated unequally, is one of the most audacious bait-and-switch operations in American political history.” Discuss.
  • Regarding campaign finance “reforms”: If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?
  • Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?
  • Justice Thurgood Marshall, for whom you clerked, said: “You do what you think is right and let the law catch up.” Can you defend this approach to judging?
  • You have said: “There is no federal constitutional right to same-sex marriage.” But that depends on what the meaning of “is” is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?
  • Bonus question: In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution’s text would be different if the number of months in the gestation of a human infant were a prime number?