Can the Federal Government Tell Us What to Eat?


While I agree with many commentators that the Elena Kagan hearings have begun to resemble a rather bad Gilbert & Sullivan production, there was one very revealing moment during yesterday’s hearing. It came when Tom Coburn explored with Kagan the reach of the Commerce Clause, the vehicle for so much Congressional mischief over the past 70 years. Coburn posed a hypothetical: if he were able to push through Congress a bill that required all Americans to eat vegetables and fruits three times a day, would the Commerce Clause’s broad sweep justify even this imposition on personal liberty?

Kagan danced around the question: while she took a mainstream position that it’s not the job of courts to strike down stupid laws, she refused to address the larger issue of whether the Commerce Clause provided Constitutional justification for such a law.

Frankly, I think she would hold that, yes, the Commerce Clause does give Congress the power to tell us what to eat.

When we link this exchange with her argument as Solicitor General in the Citizens United v. FEC case, I think we have good reason to be afraid. During her oral argument it was noted by the court that the language of McCain-Feingold would appear to reach books and pamphlets generated during campaigns. Kagan’s response was that we shouldn’t worry about books and pamphlets because the FEC had never ruled – and probably would never rule – on books and pamphlets. In short, Kagan is willing to place our First Amendment rights in the hands of federal bureaucrats. Here’s the audio:

Be afraid. Be very afraid.