08 Aug Justice Kennedy’s Mystery Speech
Earlier this week Justice Kennedy provided the keynote speech at the ABA annual meeting in Hawaii. The speech is pure Kennedy in all his earnestness. The full transcript is not available but the video is here. Here is an excerpt of the speech:
We are at another turning point in the history of the law…. [W]e are in an era where I sense something different happening…. [O]ur best security, our only security, is in the world of ideas. And I sense a slight foreboding. I sense that we are not making the case as well as we ought…. I think it is important for us to begin assessing where we are in this campaign to explain the meaning of freedom, the meaning of the rule of law, to a doubting world. My friends, make no mistake. There is a jury that is out. It’s half the world. The verdict is not yet in. The commitment to accept the western idea of democracy has not yet been made. And they are waiting for you to make the case.….
For us law is a liberating force. It’s a promise, it’s a covenant. It says that you can hope, you can dream, you can dare, you can plan. You can have joy in existence. That’s the meaning of the law as Americans understand it. And that’s the meaning of the law that we must explain to a doubting world where the verdict is still out. You can make this case. You must make this case. And that is because freedom—your freedom, my freedom, and the freedom of the next generation—hang in the balance. I am confident that you will do this.
I don’t know what to make of this speech. Let’s call it the mystery speech. He might as well have been paraphrasing his own famous “mystery passage” in Casey and declared that “at the heart of the law is the right to dream, to dare, to plan, to define one’s own concept of joy in existence.” That’s the purpose of law as Americans understand it. And this purpose must be shared to a doubting world that hangs in the balance. Justice Kennedy is calling on all American lawyers to embrace this conception of the law and then sell it to the rest of the world.
Some loved the speech, others hated it. I just don’t understand it. From what we have it is difficult to know what he is talking about. The march of global human rights? Global constitutionalism? The threat of Islamic terrorism? Too little democracy throughout the world? Too much of the wrong kind of democracy? Or perhaps the problem is the current iteration of U.S. democracy? Who knows. Watch the video and make your best guess.
But whatever he is talking about, he means it earnestly. And whatever it is he means, our very freedom depends upon each of us making this mystery known to a world that hangs in the balance.
Well gee Prof. Alford, I think I can explain what it meant to me without too much trouble. I’m not a lawyer, but two years ago I wrote an amicus brief on the merits in the Hamdi case and filed it with the Supreme Court. It was the hardest thing I’d ever done in my life, and then the clerks didn’t want to accept it from a pro se; but then a friend who’s admitted to the S.Ct. bar rescued me by joining the brief as counsel of record, and accept it they did. It’s not long — see:
Hamdi v. Rumsfeld, BRIEF OF AMICUS CURIAE CHARLES B. GITTINGS JR. IN SUPPORT OF PETITIONERS (2004.02.23)
Especially the conclusion.
I didn’t think there was anything myserious about Justice Kennedy’s speech at all. The only mystery is how any lawyer could be confused about what he said after five years of the Bush administration.
Charles,
I think you have proved my case. Each person who hears the speech can find what they want to find in the speech. You, like Andrew Sullivan, find a clear condemnation of the Bush Administration’s detention policies. Others interpret the speech to say (1) the Bush Administration is not doing enough to spread democracy (link); (2) people in other countries are not accepting the promises made by a democratic government (link); (3) many parts of the world are not yet convinced that the American form of government as designed by the framers of the Constitution guarantees a better way of life (link); or that (4) with sectarian violence erupting across the globe and religion gaining a stronghold in governments now is the time for American lawyers to herald the American system of law and governance. (link). So which is it?
Roger Alford
Sounds like Justice Kennedy is fashioning himself for a career shift, either to writing pulp fiction, greeting cards, advertising copy, or sermons. It’s unmitigated malarkey. “Liberating force”…that’s a good one. Time to reread Robert Cover’s Violence and the Word.
Roger,
I don’t think I’m finding anything more than what Justice Kennedy said, though perhaps 4.5 years of immersion in the issues and legal briefs of the detainee cases gives me more context than moste.
The entire “legal theory” of the Bush administration can be summarized in a few sentences:
“In the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.”
“In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”
John Yoo, The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, OLC (2001.09.25), Conclusion and FN32.
Is that OLC memo unclear to you? It literally claims that the President of the United States can imprison or kill anyone at any time for any reason, including US citizens, at discretion. This on the theory that it protects our national security, under a Constitution which was based on the fundamental premise that the greatest threat to any nations security was the possibility of tyranny by its own government.
When I consider that memo and everything that’s happened in relation to Iraq and Afghanistan, I can’t imagine how anyone can be confused when Justice Kennedy says:
“Our best security, our only security, is in the world of ideas. And I sense a slight foreboding. I sense that we are not making the case as well as we ought…. I think it is important for us to begin assessing where we are in this campaign to explain the meaning of freedom, the meaning of the rule of law, to a doubting world.”
Or consider this statement:
“The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation’s armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante, at 65-70; see also 415 F.3d 33, 44 (CADC 2005)(Williams, J., concurring). That provision is Common Article 3 of the four Geneva Conventions of 1949. It prohibits, as relevant here, “[t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. See, e.g., Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316, 3318, T.I.A.S. No. 3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id., at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. § 2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in § 821.”
Hamdan v. Rumsfeld, dkt. no. 05-184, 548 US ____ (2006), slip op., Kennedy, J., concurring in part, at 6-7.
Cf. this quote from his speech:
“The law is binding on the government and all it’s officials”
And when he says:
“Every person has a right to know what the laws are and to enforce them without fear of retaliation or retribution.”
How can there be any doubt that he’s thinking about the NSA / FISA controversy and the efforts of the administration to punish or intimidate reporters and their sources?
Today it’s reported that the Bush administration wants to amend 18 USC 2441 (war crimes) in order to to protect themselves from prosecution for the crimes they’ve been committing against detainees the past five years.
They’re spooked becasue Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer all said in Hamdan:
“It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
Justice Kennedy isn’t being mysterious or arcane, he’s just paying attention and standing up for the RULE OF LAW, just like he said in the speech.
Why isn’t everybody?
There’s a very basic point to understande here. It’s commonplace these days, esp. with this administration and this congress, to speak of the laws as “tools”. I beleive that metaphor represents a fundamental misunderstanding of the law. A tool is something that we manipulate to produce a desired result. The laws are not supposed to be the tool of any man: to manipulate the law is corruption. Rather, our public officials are supposed to be impartial and obedient servants of the law — and I think that’s exactly what Justice Kennedy is talking about when he says “Our best security, our only security, is in the world of ideas.”
The GWOT and Iraq were supposed to be all about our security, and they sure haven’t been lacking for tools with which to kill and abuse anyone they label an enemy. Look at the results: are you feeling secure yet?
I can’t help thinking that we’d be a lot better off now if they had just worried about enforcing and obeying the laws from the start instead of cooking up this utterly disaterous war on everything and nothing. Would you claim otherwise?
The results of their approach speak for themselves — while simply obeying the law is the one approach they’ve never botherered to try. They only use the law as a means to their own ends.
There is no mystery.
Charly