Kagan’s Own Words: It’s Fine If The Law Bans Books Because Government Won’t Really Enforce It
At least as Solicitor General. There are a couple of very disturbing elements at play here. One is the obvious: that a law that includes the possibility of banning books could at all be tolerated. This is so obviously anathema to the principles upon which this country was founded that it needs no further examination. The second, and Scalia almost touches on this, is that Kagan seems completely oblivious to the fundamental injustice of unenforced (or practically unenforceable) laws. Unenforced laws only restrict the actions of one class of individual: the conscientiously law abiding citizen. It does not, however, restrict the actions of merely the practically law abiding citizen. This results in a de facto unequal application of the law. Yet another reason we need criminal justice reform to strip away all the unclear, unjust laws on the books.
As a side note, it's interesting that books are treated sacrosanct, but other forms and mediums of communication are not, when it comes to crafting and judging legislation like that overturned in Citizens United. Why is that? Is the distinction really valid?