ACRU Senior Fellow Ken Blackwell wrote this column appearing on HuffingtonPost.com on June 20, 2010.
There’s an old joke about a Transylvanian cookbook. The recipe for an omelet starts off with this: “First, steal two eggs.” If that note really appeared in some country’s cookbook, don’t look for constitutional government or a free market system to arise there anytime soon. That’s because democracy is not something you can just plant, like shaking seeds out of an envelope.
Americans were blessed to have extensive experience of self-government when we made our bid for independence in the 1770s. And Americans at that time — all the most thoughtful ones at least — recognized the profound contradiction that human bondage represented. It was difficult to assert on the one hand that all government “derives its just powers from the consent of the governed” while holding millions of human beings as slaves. Amid many blessings, slavery was held to be a curse. It took another eighty years and fratricidal Civil War before those contradictions were resolved.
A free market can do many things efficiently and justly, but the free market is perverted when it treats humans as objects. Thus, almost all people recognize that slavery and international sex trafficking are wrong. Our laws protect artistic expression, but we demand strict enforcement of laws against child pornography. Such illicit trade cannot be honored as a part of legitimate commerce.
We already know something of the unusual ideas of human rights and commerce held by U.S. Solicitor General, Elena Kagan. Kagan has been nominated by President Obama to succeed the retiring Justice John Paul Stevens. Kagan also served in the Clinton White House, where she left an extensive paper trail of documented opinions.
Most interesting, perhaps, is Kagan’s support for cloning human beings. Clinton Library documents show that she opposed any effort by Congress to prevent human beings from being cloned specifically to create embryos that would be experimented upon, then killed. Gallup recently reported that 88% of Americans oppose cloning human beings. Kagan does not.
We also know, from her record as Solicitor General in the Obama administration, that there are circumstances in which Elena Kagan would vote to ban political books. President Obama famously attacked the Supreme Court — while its members sat robed before him — during his first State of the Union Address last January. He attacked the Court for its ruling in the case of Citizens United v. Federal Election Commission. The president said, incorrectly, that that ruling permitted corporations to contribute directly to political campaigns and would allow foreigners to come in and influence our elections.
What the Citizens United case did say was that unions and companies, and non-profit associations, do not lose their First Amendment rights to speak on public issues just because an election is less than sixty days away. In fact, the Supreme Court found, during election campaigns was the very time when political communication among citizens was most important.
At issue was a film produced by Citizens United that attacked the public record of Hillary Clinton. The McCain-Feingold law says that such communications are unlawful contributions.
Kagan was asked if, instead of making a movie, Citizens United had published a book criticizing Hillary Clinton and it hit the stands less than sixty days before an election? Could the government ban that book? Yes, she said, representing the Obama administration. Ed Whelan, writing for National Review Online, pointed to the bizarre consequences of Kagan’s reasoning:
As Chief Justice Roberts pointed out, the theory of the First Amendment advocated by Kagan on behalf of the Obama administration “would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations — as the major ones are.”
Here we can clearly see that the kind of disregard for human rights Kagan denied in her advocacy of cloning human beings extends to property rights and to suppression of free speech. All our Bill of Rights guarantees — including freedom of speech and assembly — can only be safe in a constitutional order that respects human life. We must stand for free markets, but those free markets themselves are supported by respect for those inalienable rights with which we are endowed by our Creator. When those rights are denied by government, destructive forces are unleashed against free markets as well.