The Fifth Element

Does Justice Anthony Kennedy practice a "modestly libertarian" jurisprudence?

"People say I'm a libertarian," Supreme Court Justice Anthony Kennedy once told The New York Times. "I don't really know what that means." Most libertarians would probably agree that he doesn't. In June 2005, for instance, Kennedy joined the majority in Gonzales v. Raich, siding with the federal government against the people of California, who had legalized medical marijuana and thus run afoul of federal anti-drug laws. Later that same month, Kennedy joined the majority in Kelo v. City of New London, voting to uphold that city's controversial use of eminent domain to seize private property for the benefit of the powerful Pfizer Corporation.

In her engaging and carefully researched new book, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, political scientist Helen Knowles takes a different view. In her telling, when it comes to free speech, race-based classifications, gay rights, and abortion, Kennedy's jurisprudence actually qualifies as "modestly libertarian," consistent, Knowles argues, with "the basic, fundamental principles" of individualism and limited government. As Knowles is careful to explain, her arguments apply only to those four areas. (Which is a good thing for her thesis, since Kennedy's votes in Raich and Kelo—among other cases—were not even remotely libertarian.) The book's misleading title aside, Knowles makes a strong, though not entirely persuasive case.

Consider free speech. In his concurrence in Texas v. Johnson (1989), Kennedy alienated many traditionalists by finding the state's flag-burning ban to be unconstitutional. Yet as he told an audience of high school and college students in 2002, "governments are most dangerous when they try to tell people what to think."

He brings a similarly individualistic viewpoint to the question of race-based classifications. In his dissent in Metro Broadcasting v. F.C.C. (1990), for instance, Kennedy strongly denounced the government's preferential licensing treatment for minority-owned stations: "Once the Government takes the step, which itself should be forbidden, of enacting into law the stereotypical assumption that the race of owners is linked to broadcast content, it follows a path that becomes ever more torturous."

Furthermore, as Knowles writes, "Kennedy champions individualized equality, rather than group-based equality, regardless of whether the characteristic at issue is race or sexual orientation." That approach was most evident in his landmark majority opinion in Lawrence v. Texas (2003), which struck down the state's sodomy ban as a violation of the liberty protected by the Due Process Clause of the 14th Amendment. "In our tradition the State is not omnipresent in the home," Kennedy wrote. "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

In his dissent, Justice Antonin Scalia ridiculed Kennedy's opinion, arguing that the Texas legislature's "hand should not be stayed through the invention of a brand-new ‘constitutional right' by a Court that is impatient of democratic change." Yet as the legal scholar Randy Barnett has noted, Lawrence didn't "invent" anything. It simply "require[d] the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow ‘fundamental.'" Were the courts to adopt this "presumption of liberty" in other cases of government regulation, Barnett argued, the result would be a "libertarian revolution."

Which brings us to Kennedy's abortion rulings. As Knowles points out, many liberals were shocked in 2007 when Kennedy authored the majority opinion in Gonzales v. Carhart, which upheld the federal Partial-Birth Abortion Ban Act signed by President George W. Bush in 2003. After all, Kennedy was one of the co-authors of Planned Parenthood v. Casey (1992), the decision widely credited with saving Roe v. Wade (1973) from being overturned. What happened?

Knowles argues that whenever Kennedy talks about liberty, he's also talking about responsibility. Abortion, she writes, is for Kennedy "a liberty that is bounded by important state interests—particularly the preservation of fetal life—that permit the state to require the woman to exercise her liberty in an informed and responsible manner."

Knowles identifies this approach in Casey, where Kennedy argued that a pregnant woman cannot "be isolated in her privacy." The lawful decision to have an abortion, he held, must include each woman's consideration of the "consequences for others" and of "her place in society." The state, in Kennedy's view, has a legitimate interest in reminding women of their "place."

Setting aside the question of whether partial-birth abortion should be outlawed, think about the implications of this definition of liberty. Under most versions of libertarianism, individual rights do impose a responsibility—the responsibility to respect everyone else's individual rights. Yet as Knowles herself is forced to admit, Kennedy's language in both Casey and Carhart sounds more like "modest paternalism" than "modest libertarianism." Indeed, what's libertarian about advocating paternalistic (rather than neutral) government oversight?

Still, Knowles has identified (though possibly mislabeled) an important key to understanding one of the Court's most significant members. To put that importance in perspective, consider that in its 2006-2007 term, the Supreme Court decided 24 of 75 cases by a narrow 5-4 margin. In every one of those decisions, Justice Kennedy cast the majority-making fifth vote. As Slate's Dahlia Lithwick put it, Kennedy has established himself as the Court's swing vote, the one "who's going to call the shots in the near future." Thanks to The Tie Goes to Freedom, we now have a much better sense of how he'll call some of those shots.

Damon W. Root is an associate editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Well, the US Constitution is liberal/libertarian right out of John Locke to the mind of Jefferson.

    Due process, no cruel or unusual punishment, separation of church and state, no divine right or clergy rule, free speech, free press, government of the people, etc.

    Kennedy should be the rule and not the exception.

  • Brandon||

    I understand that libertarians seem to be split on the question of "judicial activism" vs "originalism". While originalism as applied by Scalia and Thomas sometimes leads to decisions that are anything but libertarian, such as in Lawrence v. Texas, I think fidelity to the constitution's original meaning is in the long run more friendly to liberty than the arbitrary inventions of the "living constitution" crowd.

    The Constitution's purpose, after all, is to define and limit the powers of the government. The activists sometimes invent new rights, but they more often invent new government powers. Therefore, I dissent.

  • ||

    Kennedy joined the majority in Kelo v. City of New London,

    That answers the question. The man is no libertarian.

    -jcr

  • ||

    ". . . nor shall private property be taken for public use, without just compensation. "

    Probably the easiest and shortest words of the Constitution to interpret.

    As onerous as the prospect is the remedy is simple - local law.

    Its funny how "originalists" abandon their simplistic views on this one.

    I abhor "taking" private property - but the Constitution doesn't.

  • ||

    Shrike,

    Let me help you out here. Taking property from one person and giving it to another just because the second person will pay more tax isn't a "public use". That's a theft.

    People create governments to protect themselves from theft, and when the government becomes a participant in the crime, it abandons its moral legitimacy.

    -jcr

  • Brandon||

    I abhor "taking" private property - but the Constitution doesn't.

    The clause, while allowing compensated takings for use by the public, implicitly forbids taking property in order to transfer it to another private party. That is what New London wanted to do. It is absolutely unconstitutional, even with compensation.

  • ||

    The 5th amendment is not an affirmative grant of power enabling gvt. to take property. I do not see any such positive, affirmative language that says "the state shall have the power to take private porperty."

    An originalist, a texualist and an honest student of the english language must come to the same conclusion. When it comes to the projection of state power, are we to be satisfied with a school of thought that speculates that the power is implied?

    Where in the 5th amendment is there support for the propostition that the government, itself, gets to decide if there will be a taking? Where in the 5th is there support for the proposition that the state, itself, gets to ordain the process of the taking? The answer is obvious-there is no textual support for such propostions. Oh, but you say such powers are implied. Brilliant.

  • ||

    Further, there is no support within the constitution, as a whole, for the position that any state actor has the authority to even argue or claim that there are implied powers in the constitution giving the state actor the power to act or do X.

  • MNG||

    Conservatives hate, and I mean, hate his guts for his assertions in cases like Lawrence v. Texas concerning the primacy of personal liberty. Libertarians and liberals applauded him.

    That should tell everyone something. There's a reason why liberals and libertarians share that root word and conservatives don't.

  • MNG||

    "Taking property from one person and giving it to another just because the second person will pay more tax isn't a "public use"."

    What if it furthers the "public interest?"

    I don't like it either, but lets not pretend the Framers shared our views...

  • Brandon||

    The 5th amendment is not an affirmative grant of power enabling gvt. to take property.

    States don't need affirmative grants of power from the Constitution enabling them to take property.

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  • ||

    But as Associate Editor Damon W. Root writes, political scientist Helen Knowles argues that when it comes to free speech, race-based classifications, gay rights, and abortion

    You thought you could slip that one past me, didn't you?! Awy theenk naught! [/bad English accent]

    There are libertarians on both sides of the abortion issue. Just like everyone else in the debate the question is about whether the unborn has rights that need govt protection.

  • MNG||

    "Just like everyone else in the debate the question is about whether the unborn has rights that need govt protection."

    Crimethink is a dumbass, but right in this instance...In the areas of abortion, and animal welfare, if the things in question have moral weight sufficient then it would OK the government protecting them, like it protects anybody...The question is, does it?

    Unlike crimethink, I actually think mature pigs have more in common with us, morally, than little microscopic, limbless, brainless, "humans", but that's how things are...

  • Brandon||

    I don't like it either, but lets not pretend the Framers shared our views...

    The majority opinion in Kelo doesn't even attempt to dispute that the authors of the Constitution would have considered the New London takings to be unconstitutional. It just says, "Eh, what the fuck."

    Indeed, while many state courts in the mid-19th century endorsed "use by the public" as the proper definition of public use, that narrow view steadily eroded over time. Not only was the "use by the public" test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose."

    There you go. Your rights are subservient to the "diverse and always evolving needs of society."

  • MNG||

    "what proportion of the public need have access to the property? at what price?"

    That's the key part, Brandon...

  • MNG||

    A landowner holds out from a government attempt to "take" his land to build a road that will benefit many, many people.

    The government takes land from you to give to me just for shits and giggles.

    All other cases are between those extremes, don't pretend otherwise...

  • MNG||

    My point is, a truly libertarian Framer would have said "you can't take anyone's property, even with compensation, even if it would make everyone's life better."

    But our Founders were not libertarians. Deal.

  • Brandon||

    My point is, a truly libertarian Framer would have said "you can't take anyone's property, even with compensation, even if it would make everyone's life better."

    But our Founders were not libertarians. Deal.


    I'm not arguing the Founders were libertarians. All I'm saying is they would have opposed government taking land for private use. Neither taking for public or private use would exist in a libertarian world, but we don't live in a libertarian world.

  • Kolohe||

    MNG-
    The political consensus of the founding generation was much closer to 'libertarian' view than the 'Kelo' view. Hamilton was in a distinct minority for his time. It wasn't untill the following generation where stuff like Henry Clay's 'American System' got any traction. And even then, public takings were rather rare until the new deal (unless of course, your ancestors came across the Bering Strait)

  • ||

    Hamilton was in a distinct minority for his time.

    If only Aaron Burr had shot that son of a bitch about 20 years earlier.

    -jcr

  • ||

    Kennedy also dissented on McCain Feingold. While looking up his vote I was happy to see H&R hit #7 in my first google. Unfortunately, Reason has dropped the ball recently on the political speech front. I haven't seen a post on the case of the 90 minute Hillary infomercial.

  • Mad Max||

    'Unlike crimethink, I actually think mature pigs have more in common with us, morally, than little microscopic, limbless, brainless, "humans", but that's how things are...'

    As long as it's a *mature,* consenting, adult pig, I suppose it's OK.

  • Mad Max||

    And MNG looked from pig to man, and from man to pig, and from pig to man again, and he was so clueless he could not tell which was which.

  • Mad Max||

    Would you like some grits
    With your human-fetus bacon bits?

  • robc||

    MNG,

    What if it furthers the "public interest?"

    Then the FFs would have use the fucking phrase "public interest".

    Am I being silly here?

    The KY supreme court doesnt think so. In a concealed carry case, they distinguished between a glove box and a center console. Guy (without CC permit) was stopped with a gun in his center console. KY law specifically says that carrying in your glove box of the car is not concealed carry, that is a form of open carry.

    The state supremes said that the legislature wouldnt have used the phrase "glove box" if they had wanted the law to apply to pockets on doors or center consoles or etc.

    Applying the same logic to Kelo says there is a difference between public use and public interest and public benefit and they would have used a more general phrasing if that is what they meant.

    Normally, I would think that SCOTUS is smarter than SCOTCOKY, but maybe not.

  • robc||

    States don't need affirmative grants of power from the Constitution enabling them to take property.

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


    Which doesnt answer the question of whether states can do it. I claim that is a power reserved to the people. :)

  • robc||

    My point is, a truly libertarian Framer would have said "you can't take anyone's property, even with compensation, even if it would make everyone's life better."

    But our Founders were not libertarians. Deal.


    One of the few times I agree with MNG. Accept for the last sentence, like anything else, libertarianism is a spectrum. As a big tent libertarian, many of the FFs qualify. Deal.

  • robc||

    s/Accept/Except/

  • robc||

    As an odd note, I think the constitution actually, accidentally (it was not the intended purpose), bans ED.

    How is that? Because it requires just compensation. The only just compensation is fair market value, and fair market value can only be determined by the owner and the purchaser. Thus, even in an ED case, to provide just compensation, the government must negotiate a price that the owner considers fair. Which eliminates the need for ED at all.

    Fair Market Value CANNOT, by definition, be determined by a neutral outsider.

  • ||

    "And MNG looked from pig to man, and from man to pig, and from pig to man again, and he was so clueless he could not tell which was which."

    That's cause he was looking in a mirror.

  • ||

    The clause, while allowing compensated takings for use by the public, implicitly forbids taking property in order to transfer it to another private party. That is what New London wanted to do. It is absolutely unconstitutional, even with compensation.

    You rely on the word "implicitly" to make your argument - which is suspect but I can't refute it.

    But an "originalist" like Scalia can't implicitly drag meaning out of the letter of the Constitution without revealing himself for being what he is - full of shit.

  • MNG||

    Max
    I'm sorry, but if I look at a full grown pig and a one day old embryo, I see the pig as having more in common with the embryo. The pig has limbs, it has a nervous system, it is not microscopic, it has a brain...I mean, it's truly strange to try to get me to give the rights I give to my "post-born" daughter to that one day old embryo. Just like if I ordered chicken tenders and got scrambled egg I would not think I just got a "pre-born" chicken tender I don't think embryo's are human persons...

    "The political consensus of the founding generation was much closer to 'libertarian' view than the 'Kelo' view."

    Do you mean just on the subject of eminent domain Kolohe or overall? You're probably correct either way, but my overall point that they were not libertarian on either still stands. It just wasn't what they were all about. Look at things like the Bank of the United States. Here was a federally backed entity which advantaged certain private actors because it was thought to further the public interest. And the Founders were cool with that...

    "Thus, even in an ED case, to provide just compensation, the government must negotiate a price that the owner considers fair."

    robc, I'm afraid that's just bizarre. The language of "just compensation" combined with the rest of the clause, that it authorizes a taking, should let you know that the Founder's certainly did not think that a "just compensation" meant "whatever the owner thinks it fair" for the very reasons you point out: they would need no taking clause to authorize "paying any owner what they would take for property." To have any meaning the takings clause means you can take property from an owner for a price he wouldn't have given it to you for, that's why it's a "takings" clause and not a "authorization to make a deal" clause...

  • MNG||

    "Fair Market Value CANNOT, by definition, be determined by a neutral outsider."

    Oh shit, nutty Austrian ideas have spread beyond FTG's feverish mind...

    First, FMV is what a willing buyer would pay a willing seller, not what a willing seller would have to be offered too sell to a willing buyer.

    But secondly the term "just compensation" in a clause which obviously has as its purpose to force unwilling sellers to part with their property is refering to some third party determination of compensation, which is to be used provided it is "just."

    Look, I don't like eminent domian much myself. But I don't think there is much in the Constitution from the Founders to fight it with.

  • Brandon||

    You rely on the word "implicitly" to make your argument - which is suspect but I can't refute it.

    But an "originalist" like Scalia can't implicitly drag meaning out of the letter of the Constitution without revealing himself for being what he is - full of shit.


    Deriving implicit meanings from the Constitution isn't necessarily inconsistent with originalism. All it takes is logic, command of the English language and an idea of what people thought at the time the Constitution was written. Thomas in his Kelo dissent:

    Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides "just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public use." Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power--for public or private uses--then it would be surplusage. See ante, at 3-4 (O'Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) ("It cannot be presumed that any clause in the constitution is intended to be without effect"); Myers v. United States, 272 U. S. 52, 151 (1926). Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, "would permit private property to be taken or appropriated for private use without any compensation whatever." Cole v. La Grange, 113 U. S. 1, 8 (1885) (interpreting same language in the Missouri Public Use Clause). In other words, the Clause would require the government to compensate for takings done "for public use," leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); J. Madison, for the National Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds. 1983) (arguing that no property "shall be taken directly even for public use without indemnification to the owner").1 The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government's power of eminent domain.

  • ||

    MNG,

    You keep referring to a 1 day old embryo to demonstrate how a full grown pig is closer to a post born human. What about a human embryo with a nervous system, limbs and a brain? Sounds like you are against partial birth abortion, probably even abortion after the first trimester.

  • cdcdawg||

    Lost in all of this back and forth, as well as the article, is the question of who gets to decide. Unelected and unaccountable justices, or elected representatives of the people. Just because the Court finds in favor of individual liberty is no reason for celebration in and of itself. If their reasoning was poor, they just laid the groundwork to take something else away from you; maybe your voice in the government. Maybe your right to live under some different conditions in another state (by federalizing EVERYTHING).

    It's amazing that while all of these new constitutional rights have been discovered over the last several decades, the government continues to grow, both in scope and power.

  • Scarpe Nike||

    is good

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement