Justice Anthony Kennedy is right

February 4, 2016 § 33 Comments

Supreme Court Justice Anthony Kennedy famously wrote, in his opinion on Planned Parenthood vs Casey:

At the heart of [political] liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

This statement is correct.

I have explained in many different ways how and why liberalism simultaneously

  1. Is rationally incoherent, and therefore logically implies everything and its opposite all at once; but in a way which is not immediately transparent.
  2. Affirms individuals in their expectations and exalts what individuals happen to desire or will over reality: cafeteria realism.

One of the interesting functions of the Supreme Court in the American political system is that it gives conservatives a strange attractor for hope and blame: a political sink to absorb their resentments, hopes, and fears while stopping short of repudiating liberalism. Authentic political freedom and republican democracy would work if only those tyrants in the Supreme Court would stop legislating from the bench. Certainly (goes the argument) it is unfair to blame democracy and liberalism – authentic classical liberalism – for the tyrannies of the Court.

The Supreme Court keeps everyone on the reservation by playing the roles of referee and tyrant. Part of the problem with populism is that sometimes people decide that liberalism isn’t what they really want: subsidiary authorities and electoral majorities will sometimes violate liberal principles if someone doesn’t keep the electorate and subordinate government bodies in line. So social conservatives end up simultaneously excoriating the Court and hoping to gain control of it, so that their truly authentic vision of freedom and equal rights can be achieved.

Meanwhile, even when the judges are appointed by conservatives – Anthony Kennedy was appointed by Ronald Reagan – those judges inevitably find (shocking, I know) that liberal principles imply substantively liberal outcomes for disputes in law.

When Kurt Gödel was applying for US citizenship he almost got his citizenship denied, because he would argue that theoretically the US could vote itself in a king or strongman dictator. His friend Albert Einstein calmed him down and reassured him that this theoretical possibility was not really a practical possibility: whatever the formal structures may theoretically allow, the United States was incorrigibly committed to freedom and equality as bedrock political principles.

I’ll just suggest that conservatives who think that liberal democracy could work out great, if only it weren’t for the tyrannical Supreme Court, are no Einsteins.

 

§ 33 Responses to Justice Anthony Kennedy is right

  • P.B. says:

    My classmates discussed this quote in our civil liberties class. I pointed out that it was incoherent but most of the class continued talking about it like it meant something. (To be fair to my classmates, its lack of coherence may not be immediately transparent, as you say.)

    I think many people, myself included, don’t think everything would be fine if we had the right Supreme Court justices. We just think that our nation would be better off, or perhaps, less worse off, with good justices.

  • Zippy says:

    P.B.:

    It is strangely commonplace for me – as an antiliberal patriarchal antidisestablishmentarian metaphysically realist subsidiarist – to encounter the bizarre tendency of folks to continue to attempt to employ concepts which they have just conceded to be rationally incoherent.

    Certainly with different accidents – different particular judges or leaders for example – things can be, at a secondary or tertiary level, better or worse in a given liberal regime. That is what keeps conservatives on the reservation: in order to influence the battles over tertiary accidents you have to be a part of the primary liberal consensus. If you are a misanthropic sociopath like myself on the fundamental question of what politics is about and what justifies authority, you can’t possibly win any significant public office. Only those who are willing to pledge allegiance to basic liberal pieties will be taken seriously.

    With apologies to Henry Ford, we can have any kind of rulers we want, as long as they are liberals.

  • King Richard says:

    Zippy, P.B.;
    One of the fascinating things about being, well, me is that many of my citizens come from people that grasp the irrationality of Liberalism and become citizens specifically to oppose Liberalism…
    and yet still struggle with a Liberal outlook.
    I sometimes compare it to an accent. It feels perfectly natural because everyone around you has the same accent. When you come into contact with a different accent it is hard to understand. And when you are startled or under stress it tends to come back.

  • P.B. says:

    I think that practically speaking, a right-liberal justice might conceivably rule very similarly to anti-liberal justice. The constitution isn’t holy or whatever (sorry Mormons), but a good reading of the text doesn’t usually lend itself to evil, anti-realist rulings in particular cases and controversies. This may all be in the secondary or tertiary order as Zippy says, but it isn’t nothing. That being said I would of course prefer a wholesale replacement of the liberal order to a mere amelioration of that order via “the right” judicial nominations.

  • Zippy says:

    Look at the actual track record in reality. What right liberal compromises in pursuit of tactical victories has accomplished is to absorb all of the attention and energy of ‘natural’ conservatives and men of good will: attention that might be dedicated to actually opposing liberalism, but …

    Look! Squirrel!

  • Zippy says:

    There is no such thing as right liberalism without left liberalism. Moderate forms of liberalism by their nature produce more rabid forms. Every time conservatives try to stop liberalism with liberalism it just produces more liberalism; yes, even when there are apparent tactical victories.

  • King Richard says:

    I personally don’t like the terms ‘right’ and ‘left’ Liberalism. Liberalism is, as a whole, Left. I prefer to think of it s Economic or Classical Liberalism (what some call ‘Right’ ) and Social or Equality (what some call ‘Left’) Liberalism.

  • P.B. says:

    Zippy:
    I agree that we are constantly losing the war even if we seem to win battles. I suppose I just despair of ever winning the war. I don’t see the West ever abandoning liberalism for any reason short of catastrophic societal collapse that would would require people to abandon liberalism or die when liberal anti-realism crashes into reality. I may just be shifting deck chairs on the Titanic but that seems like all I can do, at least in the political arena. I suppose the obvious answer is to just leave that arena entirely. But hey, that side of the deck is closer to the bar.

    I could be wrong about all this. I could be wrong about the permanence of liberalism and even if I’m right about that my chair shifting efforts may ultimately cause more harm than good anyway.

    King Richard:
    I agree that liberalism is the Left. I don’t mind the convention of referring to different kinds of liberalism as right or left so long as it’s understood that such labels are merely relative. However, I can understand why you would prefer your more accurate labels.

  • Zippy says:

    I’m not sure we are disagreeing about anything important at this point. But the Kantian Chasm might be pertinent.

  • Mike T says:

    I think most of the problem with the Supreme Court is that it plays the role of keeping the Constitution functional without addressing all of the ways that our political system ignores it. Much of the time, the Supreme Court just makes stuff up as they go along. The Constitution will say you have a right to speedy and public trials without qualification, but the Supreme Court will invent a state interest that somehow magically overrides those simple words. This or that gun restriction is ok because the 2nd amendment’s equally blunt language is somehow magically overridden by a higher, uncitable law that empowers that jurisdiction to alter or abolish it in the name of public safety. Then we have the absurdity of no limits on campaign cash, but pornography is protected speech.

    What the Supreme Court should be doing is saying that if you are going to make political problems into legal problems, we’re going to reflexively hammer the political system with the most hardline interpretation we can of the simple text that no one wants to even tweak to make it more flexible. If the Supremes were to give us the judicial government we want good and hard (without lube) that we seem to demand, I can guarantee you that within an election cycle there would be a very interesting constitutional convention in place discussing all sorts of questions about how we want to be governed.

  • Zippy says:

    Mike T:

    Much of the time, the Supreme Court just makes stuff up as they go along.

    That is what many conservatives seem to think. But that is because they have not grasped the full reality of the situation.

    In fact what happens is that particular jurists are actually making their decisions in perfect rational conformity to their own premises – premises which are every bit as valid (or invalid, since their very basis is incoherent) as the (equally incoherent) premises of the ‘conservative’ jurists who oppose them.

    ‘Liberal’ coins don’t look shiny to ‘conservative’ jurists; and their own coins do look shiny to them.

    But that is because both have failed to grasp the situation and are enraptured by the shiny sides of their own coins.

  • King Richard says:

    Mike T.,
    You wrote,
    “…a very interesting constitutional convention in place discussing all sorts of questions about how we want to be governed”
    That would be based on a Liberal worldview and would try to ‘fix’ things by implementing another irrational liberal democratic shambles.
    The Supreme Court of the US is functioning just exactly as it is meant to. So is the legislature and the executive of it and every other Democracy.
    Do you have a sister, niece, or friend who dates a lot of, oh, musicians or poets or actors? They keep having these horrible experiences and then going to another musician or poet or actor?

  • GJ says:

    Mike T:

    Much of the time, the Supreme Court just makes stuff up as they go along…a state interest that somehow magically overrides those simple words…a higher, uncitable law that empowers that jurisdiction to alter or abolish it in the name of public safety

    I’m not sure why you find it so hard to take the Constitution at face value. Supposedly it’s to promote general welfare and Liberty (amongst others), so really what’s so difficult to accept about people with the power to de facto modify it actually doing so on such a basis while reasoning from their own varied perspectives?

  • Mike T says:

    Because as much as we may agree that liberalism can lead to any outcome, a particular statement may not. For instance “the right to keep and bear arms shall not be infringed” is rather cut and dry. An infringement is an act that undermines or limits a thing. Therefore on its face, the 2nd amendment means only one thing: the jurisdictions it covers may take no steps to limit the right to keep and bear arms.

    So no, the Supreme Court is not acting in accordance with its own jurisdiction and authority. You can say all sorts of things about the Supreme Court and liberalism, including it being foolish to think that a liberal institution would limit itself to the impositions of any authority, but the Constitution itself prescribes certain particular restrictions. The Supreme Court often simply does not follow those.

    That’s what I mean when I say the Supreme Court “makes stuff up as it goes along.” The 2nd amendment has never been ambiguous, and really none of the other Bill of Rights amendments either.

    Now this is not an altogether bad thing because the Supreme Court sometimes has to actually pull the political constitution back from a point of insanity. For instance, the 1st amendment taken literally allows no laws against defamation, uttering national security secrets in public, etc.

    But the facts are the facts. Even when they’re saving us from ourselves, from the perspective of the text they are interpreting, they often just make stuff up.

  • Zippy says:

    Mike T:

    The 2nd amendment has never been ambiguous, and really none of the other Bill of Rights amendments either.

    In general I find it impossible to reach people who believe that kind of myth.

  • King Richard says:

    Mike T.,
    You wrote,
    “Therefore on its face, the 2nd amendment means only one thing: the jurisdictions it covers may take no steps to limit the right to keep and bear arms.”
    The SCOTUS member Anthony Kennedy famously said (as is quoted above),
    “At the heart of [political] liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
    Let me be as blunt as I can – within the context of Liberal Democracy there is no such thing as anything meaning only one thing.

  • Mike T says:

    King Richard,

    Let me be as blunt as I can – within the context of Liberal Democracy there is no such thing as anything meaning only one thing.

    I believe I referenced that as one of the things I said in the post about a reasonable line of attack on the Supreme Court. If you took the 2nd amendment to a tribe of bushmen in Africa and translated it as literally as possible they would understand it to mean bluntly “the chief has no power to tell me I can’t carry my weapons wherever I please, whenever I please.” They might not find that wise, but they would find it peculiar that you have a law that says one thing and bunch of authorities who openly say it means something quite different from what it literally says.

    So yes, that is a problem with liberal democracy, but it’s a practical way of demonstrating to people that liberalism tends to lead to outcomes like this because no one is constrained to what is actually said (only how they wish to read it)

  • Zippy says:

    I’d like to see “a well regulated militia, being necessary to the security of a free state” translated into Khoisan click language.

  • The Three branches of government – Judicial, Legislative, Executive – are said to be separate but equal but the Judicial Branch is more equal than the other two and will be until one of the other two branches begins to declare acts of the Judiciary unconstitutional.

  • Zippy says:

    ABS:

    You might find this old post pertinent to the issue of separation of powers.

    And this one, for that matter.

  • P.B says:

    Mike T: Originalism is not quite that simple. Take the first amendment for instance. On its face it would seem to mean that the Feds (and the states after incorporation) cannot restrict speech or the press. However it does not really mean what it says. It has been long understood that things like obscenity and libel did not fall under the protections of the First Amendment. The court has to “make up” some sort of rules to establish what those things are.

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