Kagan's Double Standard

Despite Elena Kagan’s impressive “evasiveness,” observers have noted a loose and shifting commitment to the principle of free speech. But her position, and that of liberal legal academics, is really quite simple: She favors free speech for the right people but not for the wrong people, for the right interests but not for the wrong interests.


The whole project of modern liberalism has been to distribute “rights” in ways that liberals deem socially valuable. This rejects the founders’ view that God and/or Nature endowed individuals with rights, which governments are instituted to protect. Twentieth century progressives and liberals believed instead the governments distribute rights according to elites’ sense of social good.

The founders had a holistic, “seamless garment” view of rights. The made no distinction between property rights and free speech rights. Rather, land, capital, money or other tangible economic rights were simply one facet of “property,” which included anything, tangible or intangible, to which one could claim ownership. This is the meaning of the Latin root of the word, proprius, a possessive pronoun meaning “mine.” When John Locke used the term “property,” he meant this–everything to which one had a right. When he spoke of land, capital, chattels, or money, he used the term “estates.”

James Madison echoed this in a 1792 essay. “It embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage…. A man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

The progressives developed a double-standard of rights, one in which “property” rights are separated from and subordinated to “non-property” rights, often referred to as “personal” rights or “human” rights. The progressives were able to get the Supreme Court to abandon the protection of economic rights, while preserving judicial review for non-economic rights. It did so in a very famous footnote to a decision in which it upheld a congressional act prohibiting the interstate shipment of “filled milk” (an interesting story in itself–another place where the dairy lobby has left its mark on constitutional law).

The case was U.S. v. Carolene Products, and the Court noted, “The existence of facts supporting the legislative judgment is to be presumed,” in cases involving “ordinary commercial transactions.” In economic regulation, the Court would assume that legislation “rests upon some rational basis within the knowledge and experience of the legislators.” That is to say, the Court would accept any but the most wildly irrational basis for economic regulation. But “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth,” Justice Stone wrote. “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” The note also suggested that the Court would scrutinize “statutes directed at particular religious, or national, or racial minorities,” and also be alert to “prejudice against discrete and insular minorities [which] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

Simply put, some rights, and some groups, were entitled to more constitutional protection than others.

This doctrine became known as the “preferred freedoms” or “double standard” test. The Court has developed it largely by applying the Bill of Rights to the states. It is not surprising that it took the Supreme Court decades to get around to applying the Second Amendment to the states, since the right to bear arms is not a right that liberals cherish.

But, after liberals made free speech a preferred freedom, they began to worry about that right being used by the Right. Thus they invented ingenious arguments to justify college speech codes, the “fairness doctrine” in broadcasting, and, most recently, campaign finance reform. They are trying to find a double standard within the double standard, one that will limit freedom of speech to the groups and interests that liberals prefer. It’s no wonder that Dean Kagan sounds evasive.