Supreme Court nominee Elena Kagan opened the second day of her confirmation hearing today by embracing the language of conservatives, even as she left plenty of room for how she would interpret the U.S. Constitution.
In response to a question from Sen. Patrick Leahy (D-Vt.), Kagan spoke admiringly of the work of those who wrote the Constitution and said their intentions are a starting point for interpretation.
“Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do,” Kagan said. She added, “In that way, we are all originalists.”
The term “originalists” is, of course, most associated with Justice Antonin Scalia, though it is widely used by other conservatives, including former Judge Robert Bork. They emphasize looking at the text and original meaning of provisions of the Constitution.
Kagan said that the Constitution’s framers wrote the document while looking “generations and generations and generations ahead.” She gave an example of one of its specific rules — the requirement that senators be at least 30 years old — and of one of its broad principles — the Fourth Amendment’s prohibition of “unreasonable searches and seizures”
“Well, what’s unreasonable? That’s the question,” Kagan said. “The framers could have given a whole primer on searches and seizures… but they didn’t do that.”