Elena Kagan — Worryingly Wobbly On the First Amendment

The first amendment to the United States Constitution is so profoundly important that it permeates nearly every sector of our society. Clearly, America’s forefathers deemed the contents of this primary amendment so essential that it was perfectly positioned to precede the other amendments. For this reason, among many others, any American worthy of the name should have reservations, if not concerns, regarding Elena Kagan’s anti-first amendment worldview. Allow us to first explore the amendment in its entirety:


Here, our forefathers very clearly tackle a number of issues – religion, government restraint, the freedom to speak openly, the allowance of a free press, peaceful assembly and the right to formal complaints against perceived government abuses. And this is only the short list. The amount of socio-political power possessed in the amendment’s 45 perfectly assembled words is mind-boggling. How so many on the left can continue to mis-characterize, utilize proof texts and unabashedly slaughter the amendment’s original intent is beyond me. While this continued misunderstanding is horrifying, of greater concern is the notion that Americans will potentially have another unfit Justice overseeing first amendment rights. Jacob Sullum has more on the potential danger to individual rights Kagan’s nomination may pose:

Together with some of [Kagan’s] academic writings, her arguments in [specific] cases provide grounds to worry that she will be even less inclined than Stevens, who has a mixed First Amendment record, to support freedom of speech.

Sullum covered Kagan’s penchant for censorship in detail, so I won’t recount his argument here. What I will do is tell you why the left, and Kagan, have the first amendment radically wrong (liberals: listen up):

Our forefathers (most of them, anyway) believed in the Almighty, and referenced Him in the Declaration of Independence. The “establishment clause” in the Bill of Rights is intended to prevent the American government from establishing a church, as was the case not only in England, but in such states as Massachusetts and Connecticut, which both had established churches (Congregational) and retained them in some form for decades afterward – Connecticut until 1818 and Massachusetts until 1833.

congregational church

That said, nowhere does it say that religion cannot be present in public venues. The left’s continued assault on free speech and religious practice is alarming, especially considering that the vast majority of Americans do, indeed, believe in a higher power. Congress may not create a law establishing a particular sect or religion, yet the left takes that to mean that a cross cannot be placed on public property and the Ten Commandments must be removed from every public venue. It’s clear that there’s a major disconnect between original intent and current interpretation. In fact, many times, liberals, themselves, violate the spirit of the first amendment by demanding that various cohorts not freely practice.

In terms of the press, I believe it is essential that we allow journalists and networks the right to decide how they want to distribute information. Nowhere in the first amendment would support for the Fairness Doctrine be found, as this regulatory shenanigan does little to provide actual “fairness” in reporting. In fact, this is a backdoor method Democrats incessantly salivate over, as they dream about using it to squash conservative successes in broadcast markets. Once again, it flies in the face of the individual rights guaranteed by the first amendment.

While the aforementioned examples are not necessarily tied to Kagan, a general pattern based on her past statements, papers and articles showcases an individual who appears bent on stopping many of the rights guaranteed by our Founders. Unfortunately for Kagan and her ideological bedfellows, the offensive quality of a statement, image or media outlet has nothing to do with its constitutionality. The people are protected, whether she likes it or not.