Once upon a time we could count on lawyers and law school professors to defend the First Amendment, the most important 46 words in the Constitution. Those 46 words make everything else possible. Shut up the people and the government can shut down every other freedom.
The genius of the Founding Fathers was their ability to write the Constitution in the plain English that everybody could understand. Lawyers can employ entire boring paragraphs to say "good morning;" many young women have dozed off while their lawyer swains were on their knees with a proposal of marriage.
A good lawyer, or even a bad one, can put loopholes in any proposal. To wit, Elena Kagan's explanation of the First Amendment. It's perfectly OK, she wrote in the University of Chicago Law Review, for the government to restrict free speech as long as it means well. The word "restrictions" sounds bad, like an uncomfortable leather restraint, but Mzz Kagan's "redistribution of speech" sounds benign, like free cheese. Who doesn't like cheese? She argued that the government can employ Orwellian restrictions on certain speech if it thinks such speech might "harm" others, either by direct action or inciting someone else to take direct action. Who gets to decide when such restrictions are imposed for the greater good? Why, the government, of course.
Here's how the Founding Fathers, ever suspicious of ambitious Lilliputians, wrote the guarantee of free speech: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Note that the First Amendment does not say that Congress "should" make no law abridging the freedom of speech, or that it would be nice if it didn't. The operative words are "shall make no law." What part of "shall" can Mzz Kagan not understand?
The Constitution has "evolved" since then, of course, and now the liberal left, led by the Warren Court and its bastard progeny, has discovered all manner of "emanations" and "penumbra," like an embedded Da Vinci code, that the Constitution doesn't really mean what the words say it means.
She does not identify, exactly, what speech the government could regard as inflicting such "harm" as to justify suspending the Constitution, but she offers as examples incitement to violence, "hate speech" and "fighting words." Since certain friends of the White House have suggested that "tea party" activists may have already been guilty of sedition, we can imagine what some of the violations might one day be.
President Obama's selection of Mzz Kagan is of a piece with what is emerging as his operating philosophy of government. The president's thin skin, his irritation with constructive criticism, is well known, and we can all be sympathetic. Who among us relishes criticism? But he's not content to retire to the cosseting comfort of the Oval Office to sulk. He complained to the Class of '10 at Hampton University the other day that Internet blogs, certain cable television networks and talk radio make life tough and inconvenient at the White House. Mzz Kagan's "redistribution of speech" could fix this.
Elena Kagan has no large body of work to make it easy to see what kind of justice she might be. This is the most important reason the president selected her. The White House is trying to keep her away from even the most polite questions until she has to face softballs from sympathetic senators. He expects quick partisan confirmation. But he can't object to the despised pundits, bloggers, cable-TV commentators and radio talk-show hosts and guests who speculate from whatever hints and clues they find in her past. Mr. Obama himself is the model for these speculators.
He was frustrated by the lack of a paper trail for Harriet Miers, the White House lawyer for George W. Bush and a Supreme Court nominee whom Elena Kagan, with her abundant inexperience, resembles in many ways. Mr. Obama, then a very junior U.S. senator, called Mzz Miers "a blank slate" and said that "in the absence of a judicial record" she would have to be more forthcoming, and the White House would have to be more forthcoming, in answering fundamental questions about who she really was. Mr. Bush, properly chastened by the uproar over the Miers nomination, much of it led by conservatives, summoned the grace to withdraw the nomination. There's a precedent here.