Tuesday, June 29, 2010

Kagan: comfortable with laws that COULD ban books

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?


Patrick said...

to be fair, she was employed to defend the federal government. I imagine that lawyers argue positions often with which they may not necessarily agree because they are representing a client - not themselves. I would liken this criticism of Hagan to the "but he defended TERRORISTS" criticism of..um....well, I can't remember who received that criticism, but I know that someone in the Obama administration did.

not that I don't have issues with Kagan, I just think there are stronger arguments against her confirmation.

John said...

Yes, as I said, she argued it as Solicitor General. A position she was not forced into, and one which she could resign at any moment when she was faced with a legal crisis of conscience. It's a fair defense, but it only goes so far.

And all accused people have a right to their defense. Laws, however, are not people. Invoking the high ideals of the adversarial criminal justice system doesn't get you much here.

Maybe the real lesson is that someone who would willingly be SG, particularly in the current or prior administration, is not someone I'd really want sitting on the court. It's almost a bit like asking a cop who made a career of running speed traps to be a judge in traffic court.