Breathtakingly Stupid Argument From Elena Kagan

Elena Kagan’s credentials to serve on the Supreme Court are being scrutinized closely, as they should. We know already she is strongly pro-abortion and gay marriage, which should be enough to cause most Catholics concern.

Now we learn she is oblivious to the worst excesses of the government’s power to ban free speech, i.e., the distribution and reading of books.

On September 9, 2009, Kagan argued (the video is here) before the Supreme Court on behalf of the Federal Election Commission against Catholics United, which in 2008 had distributed a documentary entitled Hilary: The Movie. (The Court decided on behalf of Catholics United.)

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An exchange between Kagan and the justices records an argument regarding section 441b of  the Federal Election Commission Act about whether or not it could apply to books. 

Kagan admits to Justice Ginsburg that, in theory, the section could “apply to other media.” 

This admission brings Scalia, Alito, and Roberts into the discussion to press Kagan on whether or not she was concerned the FEC would ever use its power to restrict the distribution of books. 

Kagan’s response, essentially, is that we don’t need to worry about that because, thus far, the government has never applied the regulation to books:

Kagan: — which does cover books, except that I have just said that there would be a good as-applied challenge and that there has been no administrative practice of ever applying it to the books.

And also only applies to express advocacy, right?

203 has (.) is (.) is (.) has a broader category of the functional equivalent of express advocacy, but 441b is only express advocacy, which is a part of the reason why it has never applied to a book.

One cannot imagine very many books that would meet the definition of express advocacy as this Court has expressed that. (Emphasis added)

Kagan expressed no concern about an FEC regulation that was “overly broad” (Alito) in its application. Why? Because we can trust the government.

That Kagan’s attitude toward the law puts the cart before the horse is typical of those who possess her ideology. Bureaucratic rule, not the rule of law, is the guiding principle of government.  

Let me translate: Since the power of federal government can be trusted not to enforce bad laws, we don’t need to worry about those laws, even if they don’t conform to the Constitution. 


  • Deal W. Hudson

    Deal W. Hudson is ​publisher and editor of The Christian Review and the host of “Church and Culture,” a weekly two-hour radio show on the Ave Maria Radio Network.​ He is the former publisher and editor of Crisis Magazine.

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