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tv   Book TV  CSPAN  July 3, 2009 9:00am-10:15am EDT

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he's cast the desiring vote in countless controversy lal case, sometimes siding with the liberals, sometimes with the conservatives. two terms ago he was in the majority in all 24 of the court's 5-4 decisions. in fact, he was in the majority in all but two of the court's decisions that term and his pivotal role on the court continues to this day. it's no stretch therefore to say that as goes kennedy, so goes the court. none of that speaks to the character or quality or implications of justice kennedy's opinions of course. just this morning, for example, the top story in washington's
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legal times is about the massive delay in civil trials in the d.c. circuit that's resulted from last term's bomadine decision, extending heavy corpus decisions to guantanamo detainees. justice kennedy offered that opinion over the vigorous dissented of chief justice roberts and scalia. and in 1995, u.s. term limits versus fortom, justice kennedy cast the deciding vote that endped the grassroots effort to have the congress less insulated from political accountability. there's no way to appropriately account for in one volume, for more than 1700 cases on which justice kennedy has cast a vote, and professor knowles has not taken on some herculean attack. rather, she's focused on kennedy's decisions concerning speech, equal protection, and
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personal liberty, and has from them, drawn a sympathetic but not uncritical portrait of a justice wrestling with the great issues of the day, in the context of the constitution and the timeless issues of moral, political, and legal theory. all by way of drawing out the modest libertarianism that she finds as the thread in justice kennedy's opinions. for our program today, professor knowles will discuss her book for about 30 minutes or so, after which we'll have comments from one of her mentors at boston university, professor randy barnett, now at the georgetown law center. professor knowles will then respond briefly after which we will hear from the audience with questions and answers and then we will retire for lunch upstairs in the winter garden. let me then briefly describe -- give you have a bio on professor
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helen knowles. it is a very, very impressive curriculum vitae that she has for so young a scholar. she graduated only in 2000 from liverpool hope university college in liverpool, england, she graduated first in her class. the polar prize for the highest final year grades achieved by a students in a b.a. single honors program at the department of american studies. she then enrolled in boston university to pursue her doctorate, which she did and completed in 2007, with a dissertation called "a dialogue of liberty, the classical liberal and civic education principles of justice kennedy's vision of judicial power." i asked her just before we went on whether it was the -- it was libertarianism that took her to justice kennedy or the other way around. surprisingly, it was the other
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way around. she focused on justice kennedy and from that, developed the libertarian theory that serves as the first part of her book. i will introduce professor barnett, just before he comments on the book, but please join me in welcome being professor helen knowles. [applause] >> thank you, roger. and thank you to the folks at cato institute for inviting me here today. i accepted the invitation to come to this forum immediately, and then i took a look at the people who participated in previous book forums and to say the least, i was shocked because i was very much, much more junior, and certainly hadn't
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published anything like as much as the people who participated in previous book forums, so it's a real delight and real honor to be invited here today. and i would also like to thank randy for the great comment on my book. and i anticipate very productive feedback that i'm sure will help me to understand a lot more about what i put in my book. imagine that it is oral argument day at the u.s. supreme court. following some administrative announcements, the chief justice clears his throat and indicates that the court will now hear arguments in the first case of the day. the attorney rises, proceeds to the lectern and offers the following opening observation. mr. chief justice, and may it please the court, i understand that this will be a difficult case for you, the court, to decide.
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if a majority of this court believes that the correct interpretation of the word "liberty" in the due process clause of the 14th amendment is a narrow one, it's defined by closely consulting the nation's positions and history, then my client will not prevail in this case. in the months since the court had granted certiorari in the case, if court watchers were to be believed, then the votes of only two of the justices were truly up for grabs. however, on this occasion, the attorney's opening sentence prompted all nine members of the court to sit up and take notice encouraged, the attorney continued. if, on the other hand, a majority of this court affords liberty, a more expansive interpretation, embodying the currently concepts of individual autonomy, dignity, and
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responsibility, then the government faces a far greater burden of justifying its actions in this case. although this scene is fictional, it addresses a current jurisprudence reality. that the constitutional boundaries of individual liberty, as defined by the u.s. supreme court, in the 21s 21st century, will most likely be drawn by reference to one of the two sets of interpretative guidelines, described by my imaginary attorney. and in the immediate feature, in closely divided cases, the prevailing interpretation will likely be what anthony kennedy says it is. if those who have tried to explain justice kennedy's jurisprudence are to be believed, this is not much help at all, because justice kennedy is according to other
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commentators, a flip-flopping, inconsistent jurist, who is far more likely to pepper his opinions with pompous, meaningless rhetoric than with well-defined legal doctrine. my book challenges that conclusion. now i don't claim that justice kennedy has an overarching judicial philosophy, for he himself has said that he doesn't have such a jurisprudence. rather, what i demonstrate is that in certain areas of the law, one can find consistency in his opinions. a consistency that comes from his employment of a modest libertarianism. now, i suspect that to many people in this room, the idea of describing kennedy's jurisprudence as libertarian may come as a surprise. because kennedy does not shy away from using an expansive type of judicial review.
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however, imagine a libertarianism that uses the authority of the state's judges, neutral decision makers, to ensure that government actions by other branches of government pass far more stringent tests when they impinge upon liberty. now imagine that this is a libertarianism that takes an especially dim view of government actions that demean the individual, negatively affect a person's dignity, diminish personal responsibility, or treat in a particular kay, because of their race. this, it seems to me, would be a libertarianism that is entirely consistent with the basic tenets of libertarian thought. this holds true even if the means to achieving the goal of greater individual freedom and respect is vigorous use of the
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authority vested in a governmental institution. before explaining the different elements that make up kennedy's modest libertarianism, a few words about what might book does not do. first of all, nowhere do i call justice kennedy a libertarian. i think it would be entirely inappropriate to call him a libertarian. he quite clearly is not. secondly, nowhere do i claim that all of his jurisprudence is modestly libertarian. and the their thing that might book does is -- does not do is related to the second thing. thirdly, i focus exclusively on non-economic liberty. nowhere in the book do i discuss cases dealing with such things as taking. [inaudible] finally,. emphasis of my analysis is the justice's behavior as he appears
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in his words. consequently, i analyzed his speeches and his opinions rather than counting his votes in different cases. now, if that is what the book does not do, what about what the book actually does? well, all too often, the objective libertarian are wanted about by commentators, particularly critical commentators, without accompanying efforts to delve into their meaning, beyond the basic observation that yes, libertarianism stands for liberty government. well, justice kennedy's libertarianism is modest, because it avoids much of the radicalized, unrestrained and polarizing rhetoric and policy proposals that its critics often associate with this political philosophy. in other words, justice kennedy's modest live
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libertarian jurisprudence gets us back to the basic fundamental principles of this particular approach to relationships between individuals and their governments. from my analysis, i reach the conclusion that in the areas of free speech, race-based classifications, gay rights, and abortion, the justices spent 20 years on the court producing opinions defending three of these fundamental principles. first of all, tolerance of diverse views. secondly, treating every individual with dignity. and thirdly, and perhaps most controversially, protecting the boundaries of liberty by asking that that liberty be exercised responsibly. so the first principle. the first principle is what i call the universal element of justice kennedy's jurisdiction, and it comes through in his first amendment free speech
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opinions. an area of the law in which kennedy was clearly the most libertarian member of the rehnquist court. if other commentators have dared to put justice ken dip and libertarian in the same sentence, it is -- it has usually been with they are describing his first amendment free speech opinions. here we see kennedy in his first amendment free speech opinions drawing on the same principles as those that underpin the dialogue on freedom, a civic educational initiative that he created alongside the american bar association following terrorist attacks of 9-11. this is very interesting initiative for understanding justice kennedy's jurisprudence. and it's something that i think has been paid insufficient attention. it's been mentioned in a couple of foot notes and articles, and the kind of -- well, it's an example of kennedy at his
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pompous best, running around, trying to tell american high school students how they should be reacting to the attacks of 9-11. but in tomb act, if you delve into the idea of the dialogue on freedom, it becomes really clear that it's a great way to understand his jurisprudence. the program that is the dialogue on freedom encourages the idea that all viewpoints should be tolerated. and that this tolerance leads to a more enlightened citizenry. in his first amendment opinions, this view translates into kennedy's passionate opposition to government efforts to discriminate against a person's speech based on the content or views of that individual's expression. governments are, as kennedy has said, most dangerous when they try to tell people what to think.
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consequently, kennedy has sought to permit only an extreme number of content based restrictions on speech. the goal of kennedy's first amendment jurisprudence can be said to be the preservation of an individual's autonomy over their thought processes. a fundamentally libertarian idea of preserving self-sovereignty. to achieve this goal, kennedy has challenged the test that has for a long time been a staple of the court's first amendment jurisprudence. the idea of strict scrutiny requiring the government to show that a regulation further a compelling state interest and is the option that places the least restriction on the expression it regulates. although he has not said that much about this in recent years, there is little reason to believe that kennedy has abandoned the view that he expressed during both his confirmation hearings and the
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early terms of his supreme court tenure. this is the view that content-based regulations are so hostile to individual expressive free dome and are so presumptively unconstitutional that not even strict scrutiny, a standard of judicial review that few got in the faxes to conspire, is the correct use. in other words, there can be no compelling justification for government actions that have the effect of saying, we, the government, require you to be silent on certain issues. or, as kennedy has written, the right to think is the beginning of freedom. moving on to of the humane element of justice kennedy's jurisprudence. the humane element is something which i devote to chapters, and it is lately built on past
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justice's efforts to rebuild standard judicial tests. the humane element emphasizes the importance of preserving of the dignity of an individual by treating him or her as an individual. this is achieved by blocking government efforts to treat people differently in both positive and negative ways, because of their membership in certain groups. membership-based, for example, on ones race or sexual orientation. at kennedy's confirmation hearing, pete wilson, former governor of california, and u.s. senator, said in support of ken dip's nomination, i think it strikes him, justice kennedy, as terribly unfair that anyone's individual potential should be in any way limited by there being classed as a member of a group and treated in accordance with their group membership rather than what they deserve to
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receive as individuals. that perfectly sums up the humane element of kennedy's jurisprudence. when the government treats people differently because of their race, even if this treatment is positive, kennedy says that only strict scrutiny will do. it is worth noting however, that this is strict scrutiny according to justice kennedy. because his formulation of this test is not one that finds much agreement on the court, and is certainly one that, although in race-based cases, generates a color blind reading of the constitution, that color blind reading certainly is nothing like as absolutist as that that is within jurisprudence of some of his more conservative comments. now, this brings me to a warning
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to anybody who wants to write about justices who sit on the court. first of all, you encounter problems of access to material. the second concern is that that justice will one day issue an opinion that blows your feet out of the water. now, kennedy is clearly opposed to race-based classifications, because they disrespect the dignity of the individual. by treating that individual differently simply because of their race. nevertheless, his solo concurring opinion two years ago in a case involving two different school districts' use of race as a factor in the assignment of students to public schools, did initially suggest that kennedy's racial classificationclassification's e was marked by the inconsistency that i was trying feverishly to demonstrate was not there.
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however, upon closer examination, what we find is that his concurring opinion in that case, he supported the conclusion that the school district's use of race as a factor for assigning students to public schools was unconstitutional. so what we see in his concurrence was not what one commentator described as a concrete doctrinal reversal by kennedy. it does not contain an abandonment of his previous adherence to strict scrutiny in race-dependent cases. rather, it takes very seriously the need for adherence to this level of judicial review. while at the same time acknowledging that some governmental he was to encourage diversity in the classroom might actually make extremely valuable contributions to creating a dignified enriched and educated
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society of individuals. strict scrutiny is needed, he would say, but you've got to ensure that the government doesn't try to enforce diversity on people, for doing so would threaten the status of individuals as the primary political unit in society. now, in contrast to strict judicial scrutiny, the government traditionally finds little difficulty in justifying its actions when those actions are reviewed using the rational basis standard. this is however, the standard that kennedy has advocated using to review government efforts to discriminate against an individual because of their sexual orientation. many members of the gay rights community criticize this approach, because they argue that their rights would be much more secure if the court identified sexual orientation as
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a suspect classification that required strict judicial scrutiny. kennedy disagrees. saying that discrimination based on sexual orientation is invariablely fueled by moral disapproval and animals and gays and lesbians. when a societial majority manages to use this moral hostility to push flu anti-gay legislation, -- through anti-gay legislation, its actions must, support kennedy, be unconstitutional, because there can't even be a rational basis for such moral based legislature. in an abortion case that i will mention in a minutes, kennedy said, our obligation is to define the liberty of all, not to mandate our own moral code this perfectly explains kennedy's hostility to morals-driven laws discriminating against
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homosexuals, who are deprived of their own individualistic dignity when governments suppressed them by enforcing their hone moral codes. this brings me to the final element of justice kennedy's jurisprudence, and most definitely, the most controversial element of his jurisprudence. this is the responsible element. and again, in the chapter in which i deal with this element of this jurisprudence, i again focus on opinions that on its face, had the potential to threaten my thesis. that is kennedy's opinion for the court in 2007. upholding a federal ban on so-called partial birth abortions. somehow, kennedy had managed to write an entire opinion about abortion without once using the word liberty.
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he did this while arguing that the opinion was entirely consistent with his contributions to the joint opinion in a 1992 case, planned parenthood v. casey. the joint opinion which has an incredibly expansive understanding of individual liberty. so how does kennedy reconcile these two opinions? the answer, as i say in my book, may be his responsible element of his jurisprudence. unlike much libertarian theory, kennedy's libertarianism does not separate rights and responsibilities. kennedy uses the concept of personal responsibility to place limits on liberty. he's fond of saying that our understanding of the u.s. constitution, which is the upper case c, constitution, is
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incomplete without consideration of the country's other constitution. it's lower case c, constitution, which is what kennedy describes as of the sum total of customs and mores of the community. nature of some of kennedy's rhetoric in planned parenthood versus casey makes it easy to overlook the passages that embody this idea of two constitutions and that qualify his seemingly efusive embrace of liberty. casey is well known for what justice kennedy -- excuse me, what justice scalia has despairagingly described as the sweet mystery of life passage. far less attention is paid to casey's reminder that the supreme court's abortion jurisprudence is not about to close its eyes to the fact that abortion is a unique act. that's an unfortunate oversight,
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because as kennedy's abortion cases and opinions have shown, this fact is of crucial importance to him. the woman, he argues, is not isolated in her privacy or liberty, and a responsible exercising of her liberty will recognize this. it will recognize the consequences of her actions. acting otherwise, demonstrates a lack of self-control that stops one from crossing over the line that separates liberty from license. the problem is that kennedy can be accused of portraying this responsible em. by using language that is decidedly paternalistic. this is language that was present in casey, but what i concluded was a sort of much kinder, gentler form of
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parentallism. emphasizing that a woman's right to terminate her pregnancy was one that must be exercised with apprehension of the full consequences of her decision. casey concluded that the court had been wrong to strike down requirements that a woman contemplating an abortion be provided with truthful, non-misleading information about these consequences. however, there had to be an exemption for instances when a position decided that the provision of this information would adversely affect a woman's health. carhart's formulation of the informed responsibility we find is far less expec less respectff individual liberty. the state's position is advanced by the dialogue that the legal systems and medical profession,
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expectant mothers and society as a whole, but the consequences that follow from a decision to elect a late-term abortion. however, it does not appear that kennedy expected women to be either willing or able to adequately represent their interests in this dialogue. although he conceded that the court found no reliable data to support it, he nevertheless considered it unexceptionable to conclude that some woman come to abort their infant life they once created and sustained. the state therefore is justified in protecting women from this emotional suffering by requiring that physicians performing abortions ensure their patients are fully informed about the details of the procedure to be used. kennedy concluded that doctors were far less able to be trusted to provide women with this sort
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of information when the abortion that was involved was the type that was banned by the federal law upheld in carhart. hence, the need for government intervention to ensure women received this information. this of course is an argument who's paternalistic overtones threaten to undermine or even obliterate any of its modest libertarianism. this is something about kennedy's abortion jurisprudence that i'm to the going to deny. however, i remain convinced that what carhart does not do is to confirm that his judicial decision making, is as inconsistent as people have spent two decades labeling it as. this is because at the end of the day, a plausible case can be made that even though carhart does not contain the enthusiastic embrace of liberty that casey does, what kennedy's
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opinion in the 2007 case did was to exhibit the same commitment to liberty that is liberty responsibly exercised, a as was evident in his earlier abortion opinions. in conclusion, i would like to say that there are many things in my book with which people will take issue. this i think is entirely appropriate for a bag about justice kennedy. who himself has been able to please all of the people some of the time, some of the people all of the time but certainly not all of the people all of the time. my hope is that this book generates a meaningful dialogue, a dialogue that starts here today, about kennedy's jurisprudence. it's a dialogue that i hope will move us away from the unhelpful and misleading assumption that his opinions demonstrate
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jurisprudencal inconsistent and doctrinal weakness. because it is such a dialogue on liberty, kennedy would argue, that will help to preserve and protect the constitution and it will help to maintain interest in that document for future generations. and show that that document is underpinned by principles of limited government that will help to ensure that at the end of the day, the tide does indeed go to freedom. thank you. [applause] >> well, thank you very much, professor knowles, and let me note that the book is available outside for purchase at a discount and so please avail yourself of that opportunity after we conclude. and professor knowles will be happy to sign the book for you. we're now going to have comment from professor randy barnett,
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whom, as i said, was one of professor knowles' dissertation advisers at boston university. professor barnett now holds of the car macwater house professor of legal theory genre at georgetown university where he teaches constitutional law and contracts. he's also taught tort, criminal law, agency partnership and jurisprudence. he's a graduate of northwestern university and harvard law school. he's tried many felony cases, as a prosecutor in cook county, illinois, in the state's attorneys office in chicago. he's been a visiting professor at northwestern and at harvard law schools, and in 2008, he was awarded a guggenheim fellowship in constitutional studies, which he is enjoying right now. he's appeared before the u.s. supreme court to argue the
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medical cannabis case, gonzalez v.rache, after successfully arguing in the 9th circuit in that case. one of the cases where the 9t 9th circuit got it right and the supreme court got it wrong. he's co-authored as well an amicus brief in texas. randy appears frequently on radio and television programs, he's the author of several books, including restoring the lost constitution, the presumption of liberty, constitutional law, cases in context, which is a very important book that gives -- it's a case book on the constitution that takes an historical perspective to the evolution of the constitution, unlike most other com law case books. he's the author of contract cases and the structure of liberty, justice and rule of law was awarded the ralph edward elliott book award and has been translated into japanese.
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please welcome professor randy barnett. [applause] >> thank you, roger, for that introduction. it's a great pleasure, as always to be back at cato. and it is truly a pleasure to be here to celebrate the publication of helen knowles' new book "the tie goes to freedom." let me begin by saying to helen, helen, this is a marvelous book. you should be very proud of your accomplishment here. i can sum up its virtues as follows. it is exceedingly well researched. it is impressive accurate about the intricate body of constitutional cases and doctrines that it discusses. it is theoretically sensitive and insightful and it is beautifully and above all, clearly written. notice i put the emphasis on clearly, even above the beauty of the prose, and i think you will agree or at least i would
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like you to know that the clarity of the book is manifested here in the clarity of professor knowles' presentation to you. she writes as clearly as she speaks. now, while the subject of this book is justice kennedy's jurisprudence, to examine this, helen was forced to explain to readers the complexity of constitutional decisions governing such topics ration the first amendment, the due process clause and the equal protection clause. if you are simply looking for a book that excessively explained the substance of this body of constitutional law and how it has developed over the past 50 years, this book would be a pretty good place to start. and hall though the book does much more than this, if it did not accurately and clearly explain these legal doctrines, it would have failed in its larger purpose. now helen's larger purpose is to examine the constitutional decisions of justice anthony kennedy and in particular, his decisions concerning individual liberty. his choice of topic excludes
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justice kennedy's views of such structural matters as federalism and separation of powers. for example, she does not examine why justice ken dip joined the conservative majority in lopez and morrison, which revived of the idea that of the commerce clause has limits, but then joined the liberal majority in gonzalez versus rache, along with justice scalia that seemed to scuttle any effort to enforce these limits, nor does she discuss justice kennedy's controversy controversial decist the scope of powers during wartime. i am curious to know what helen thinks about justice kennedy's views on liberty, but my curiosity aside that helen's book has successfully demonstrated her mastery of justice kennedy's decisions on liberty, which is why i want to know more an i know helen well enough to guess that she would insist on her need to study these subjects in depth before offering any opinion.
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this just goes to show that helen is a scholar, and underscores that the tie goes to freedom is a work of schola scholarship. in these short remarks, i can't critique her opinions concerning justice kennedy's free speech or equal protection, nor do i have a scholarly opinion of my own on how to understand justice kennedy's jurisprudence. i read this book as much to learn as to critique and what i learned seems quite plausible to me. so instead, let me briefly consider her thesis, that justice kennedy's jurisprudence can be labeled as modestly libertarian. as an immodest libertarian myself, i should admit that i was initially skeptical of this claim and i suspect many others will be as well. true, i published an article in the cato supreme court review describing his opinion in lawrence v. texas as justice kennedy's libertarian
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revolution, but contrary to how my essay was interpreted by other law professors, i was neither making a prediction about the future direction of the court, nor purporting to describe justice kennedy's intentions as deliberately revolutionary. rather, my claim was that justice kennedy did not round his decision in lawrence on a right of privacy, but rather grounded it on liberty. nor did it follow the approach of washington versus luxburg that enumber rates liberties on their most specific level and then limits judicial protection of those liberties to those that are deeply rooted in the nation's tradition in history. because his opinion shows so sharply departed from previous approaches to the protection of unenumerated liberties, had justice kennedy's opinions been written by a law student as an answer to an example question in constitutional lap at that time it surely would have received a poor grade. my only claim was if justice
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kennedy's approach if lawrence were widely followed, it would constitute a revolutionary increase in the judicial defense of liberty and for this i gave his opinion an a. regrettably, his approach in lawrence has not been used again by the supreme court, until it is low we are courts will not take it seriously as a rule of law. for example, on remand to the 9th circuit in rache, the case as roger told you, i was one of the lawyers, we got nowhere arguing lawrence in defense of angel rache's liberty to preserve her life by using medical cannabis which was allowed by state laugh. our due process claim was doomed when the court of appeals chose instead to employ the more conservative approach in gluxburg. given his liberty oriented opinion in lawrence then, there is some reason to suspect that justice kennedy does harbor some libertarian sympathies. but if he were truly all libertarian, i imagine that we, libertarians, would have detected this by now hand have
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elevated justice kennedy to the status of a hero. this has clearly not happened. so in what respect does helen characterize justice kennedy as libertarian? the answer can be found in her intriguing first chapter about libertarianism itself. i commend this chapter to those of you who may not be interested enough in justice kennedy's jurisprudence to read the entire book. as a libertarian who did not grow up in the american libertarian movement, helen hovers an analysis of libertarianism that is detached from preconceptions held by many american libertarians. in this -- in a section in which she -- a subsection in which she entitles deconstructing libertarianism principles, it's colon, principles, helen identifies the core of libertarianism as four principles. first, individual self-ownership or self-sovereignty. second, bounded liberty as
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opposed to license. third, limited government as opposed to anarchy, and fourth, the harm principle. of course, many american libertarians such as myself believe that is true harm principle is too general to provide guidance and for this reason, one needs a theory of rights to distinguish those harms that are permissiblely imposed on others from those harms that may be justly prohibited and some libertarian reject limited government in terms of a polycentric order that can be described as an ar actism. helen's four principles can be considered the core content that all libertarians share in common. for example, whether or not some would prefer a polycentric legal order to limited government, all libertarians prefer look heed limited government. and whether they believe that a rights theory is needed to specify conduct that may be
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justly prohibited, all libertarians believe that all individuals should be free to choose any conduct that does not harm others. if these four principles are the common core of libertarianism, then it is easier to see how justice kennedy's free speech, due process, and equal protection clause decisions can be viewed as modestly libertarian. for as helen chronicles, in his opinion, justice kennedy repeatedly stresses individual dignity and the need for individuals to make and live by their own life choices, constitutional limitations on government's interference with these choices, and the need nor government to justify its restrictions on liberty on the basis of some harm to others, some harm apart from the fact that a majority finds anser sighs of liberty to be morally offensive. in characterizing justice kennedy's views as libertarian, helen takes pains to repeatedly label them as modest live libertarian. now, one source of this modest live could lie in what justice
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kennedy counts as a harm. perhaps believing that conduct that does no harm to another should be permitted, and that moral offense does not count as a harm, puts you on the libertarian side of the line. but there are a host of potential harms to others that libertarians would acknowledge has real, but still insist are nevertheless permissible. the cases evaluated by helen do not tell us much more about justice kennedy's view of harm to others than that he rejects moral offense as a harm, that standing alone justifies restricting at least personal or intimate liberty. and the modest live of justice kennedy's libertarianism can be more clearly identified in how he distinguishes liberty from license. for libertarians, whereas license refers to the freedom to do whatever you want, liberty refers to doing whatever you want with what is justly ours. in other words, for libertarians, liberty is the
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rightful exercise of freedom and the rightful freedom of one person is bounded by of the rightful freedoms of everyone else. but as helen is at pains to show, justice kennedy also sees liberty as bounded by the need to exercise freedom responsibly, regardless of whether an irresponsible act violates the rights of others or not. by this, he does not mean responsible in the sense that, for example, the liberty fund sometimes refers to or always refers to as a society of free and responsible individuals, he means that of the irresponsible exercise of liberty can be regulated or prohibited by government. although not noted in her book, during my oral argument in rache, i certainly witnessed up close and personally justice kennedy's visceral hostility to any loosening of drug laws, even to assist the suffering and the dying. of course, many conservatives define liberty as a freedom to
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act, but only -- let me strat. of course, -- let me strike that. many conservatives define freedom to act but only in a responsible and moral manner and license, they define, as acting irresponsiblely and immorally. so this may be a reason to question the claim, that justice kennedy is even modestly libertarian. but in his opinion -- in other words, he might be just being conservative. but in this opinion -- in in his opinion in lawrence, justice kennedy clearly rejects the conservative equation of immorality which is why i think many conservatives were out raged by his opinion in lawrence. in this important way, and it is important, he parts company with many conservatives. in addition, it is useful to keep in mind that there are two distinct types of conservatives, those conservatives for whom tradition is at the core of their political views and those conservatives for whom liberty is at the core of their conservativism.
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for example, we have can distinguish between traditionalist conservatives like robert bork from libertarian conservatives like rush limbaugh. perhaps due to justice kennedy's emphasis on responsible exercises of liberty, he is better labeled as a libertarian conservative rather than as a modest libertarian. but this is a pretty fine line to draw. and do libertarians really want to draw such a line? in this way, helen's thesis that justice kennedy's opinions are modest live libertarian raises anew the question of who should be considered inside the libertarian tent and who is outside. perhaps one answer to this question can be found in the book's title itself." the tie goes to freedom ." if that is one's gut level instinct, then i think a case can be made that one is on the libertarian side of the line. after all, most important rival political philosophies deny this. they insist instead that the tie
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goes to equality or the tie goes to the majority. or to wealth maximummization or to mowality -- morality or even social order. once on the libertarian side of the line, the greater one's commitment to liberty, the higher the burden the government must overcome to restrict its exercise. no longer just a tie breaker, as one becomes more libertarian on the libertarian side of the line, increasingly compelling justifications must then be offered on behalf of state action. so perhaps helen here has done more than just provide an insightful presentation and analysis of the work of the justice who casts today's deciding vote. perhaps, she has also provided a criteria by wish to distinguish those who merit the label libertarian from those who do not. do they or do they not think that at minimum, the tie goes to freedom? thanks.
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>> well, thank you, randy, and i was listening to you, it struck me that another reason why the conservatives had difficulty with the lawrence decision is not simply their fidelity to tradition, but they have difficulty with the notion of judicially secured, unenumerated rights, which is an issue that is treated at some length in helen's book. helen, would you like to give a few comments in response to randy's? >> what i will say, in response to randy's comments, is he erases a point that i didn't really touch upon in my remarks, which is that one of the things that thinking back on what drove me to write this book, one of the things that attracted me to justice kennedy's jurisprudence is what category do you putt him in? do you put him in liberal or conservative or libertarian or somewhere else on his own? i've always been -- i mean maybe
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this is because i'm an outsider looking in on the american political system. high always been slightly frustrated by the labels liberal and conservative, and maybe even libertarian. perhaps i shouldn't say that here today. buff certainly, liberal and conservative. high always -- any time anyone said to me, well, what about liberals and conservatives, my knee jerk reaction has been to say, well, what do you mean by conservative? what do you mean by liberal? hand one of my former students is in the audience today and he's laughing, because this sounds like a regurgitation of one of my lectures, where i hammer home this point. but i think randy's comments suggest that it is very difficult to draw these lines. and -- there are areas of kennedy's jurisprudence where he is clearly -- we would clearly want to put him in the more conservative box, whether that's the box along with robert bork or rush limbaugh, i don't know,
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but certainly in his criminal justice jurisprudence, he's what we might, if we had -- if we were pushed to define conservativism, we might probably say he was conservative. i try in the book to use the term libertarianism to get away from the label liberal, because i don't think that that's a label that accurately describes justice kennedy and i don't think the conservative label does either. libertarianism seems to me, if you think about just the fundamental principles of libertarianism, then that is probably an accurate label to apply to jurisprudence. >> thank you, helen. i should also mention that chapter one of the book is an excellent primer on libertarianism, libertarian theory, and the various strains of libertarianism. helen is very careful to bring out the point that libertarianism is not some
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univical theory about the relationship between the individual and the state. there are main strains of libertarianism and it's to her credit that she does bring this out in chapter one of the book. all right. now let's turn it over to you folks and questions that you may have. please wait until the microphone arrives, identify yourself and any affiliation that you may have. yes. we have right down hire in the front, please. >> good afternoon. i'm with the non-governmental panel on climate change. carbon dioxide is a non-toxic, odorless gas. life formed on this planet when it was many times richer in carbon dioxide than today and indeed, all green life uses carbon dioxide as food. without it, we would be dead. yet, kennedy joined four supreme court justices -- let me say one other statement.
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congress has spent about $20 billion trying to justify regulation of carbon dioxide and there is no scientific justification it would cause anything more than a modest warming. yet, mr. kennedy joined four other supreme court justices in greatly expanding the clean air act to rule that this life-giving gas is a pollutant and can be regulated by government. this will result in a massive expansion of government powers over our life. how do you reconcile this with freedom? >> it's a fascinating question. and i'm afraid my response is going to sound a bit like i'm a supreme court nominee who is trying to avoid difficult questions. but i'm going to sort of take a
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point that randy made in his comments and say that respectfully, that is -- because that's an area of kennedy's jurisprudence that i haven't studied hand that isn't discussed in the book. a fascinating area of his decision making, but i'm going to respectfully decline to answer the question, because it's not something which -- i'm going to plead ignorance, because it's knots something that i know enough about to be able to accurately respond to your question. >> this is now a good time to observe that when i went on a book tour for restoring the lost constitution, i spoke at like 45 law schools and a bunch of other places. i have found that after having written a book, that was something like 250 pages or 300 pages long, most of the questions concerned stuff that was not in the book. >> ok. next question. yes. right here. >> hi. joe henchman from the tax foundation. a common criticism heavied against justice kennedy is relies too much on international
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precedent, precedent of foreign lies and this is underlied by the annual summer school he teaches in austria. i'm curious, in investigating his decisions and his thinking process, whether you have any reflections on this criticism. >> last year, i think it was jeffrey toobin published a book where he certainly didn't treat justice kennedy's jurisprudence anything as sympathetically like i do and he spent a lot of the time in his criticism of justice kennedy focusing on that very point. and talking about justice kennedy's extra judicial activities, such as of the salzberg program. what i have found is that justice kennedy really doesn't spend as much time in his opinions talking been international law norms and rules as people have made him out to do, but it tends to be in the high profile cases, such as roker versus simmons, one of the
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death penalty cases, where you see him using these sources. also in lawrence versus texas, he drew on international opinion. and it tends to be -- careful how far i have putt this. it tends to be in the cases where justice scalia writes a scathing dissent and highlights the international sources that they tend to get the most attention, whereas justice kennedy as a whole actually does not use this very much in his jurisprudence. but where he has used it, it's highly consistent with his deep commitment to civic education, and the dialogue of freedom is just one part of this. kennedy is very much believes that people need to be enlightened citizens and that one way to enlighten themselves is to draw on other views outside of their own little world. now, he has been subject to
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criticism when he therefore puts those principles into an opinion where it sort of makes it seem as though he's drawing on the decisions from the international court of justice, rather than looking at the u.s. constitution. but really, if you sort of dig deeper into his references of international norms and rules, what he does is to -- is to emphasize that at the end of the day, we're all human beings and that there are all certain fundamental principles that we all live by or maybe should live by, and it's real live that that he turns to in using references to international sources. >> right up here. >> my name is steven, i'm with the ppgc. my question is some people woodie void justices, at least as much as the convention am distinction between liberal,
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conservative, or libertarian as centrifugal or striputan, in that sentrifugal justices keep in mind the beliefs of their colleagues, while sacrificing their beliefs in the process and centrifugal justices could be described as victims of their own idiosyncrasies. in this schema, how would you classify justice kennedy. >> without having to pronounce the words themselves. >> well, if i pronounce the words, it would be with a different pronunciation, because it would be centrifugal.
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in that respect, he's very different from justice brennan, who was well known for, i don't want to say sacrificing his principles, but using his ability to strategically engage with his other colleagues to bring other people into opinions, if he really needed to leave something out, to bring other people in, he would absolutely do that. i think that kennedy has written far too many individual solo concurrences and solo dissents, where you've seen nobody else join him, that he really -- really is much more in that second category where if he believes strongly about something, you are not going to get him to diverge away from that, which has been one of his -- one of the reasons why he has been able to be such a strong actor at the center of the court, because if he's been assigned to write that majority
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opinion, he's been assigned it probably to keep his boat, which means that to a large extent, as long as he doesn't go way out, he's able to put into that opinion what he wants to. but he has certainly written an awful lot of opinions, where nobody else has been willing to join him. so i would put him in that second category. >> yes. randy? >> randy, with the free state foundation. this sort of follows on that. you know, he's been accused by some of being more susceptible than others to the so-called green house, london green house and seeking approbation and that ties in with some of his extracurricular activities and i've read some very good reviews of your book by the way, and my impression is, you focus almost exclusively on his papers and opinions, and these things, and didn't have a chance to interview him, but what -- based
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on your research, do you have an opinion about the extent to which this so-called effect of seeking approbation from not only her, but others, and so forth, would -- how much that influences his jurisprudence as opposed to the convictions that you explore in your book at all? >> interestingly, when i started this project, if you'd asked me that question when i started this project, i would have had a very different answer, because my opinion of justice kennedy, i have been led to believe that he was indeed susceptible to these different influences. now i believe that there is still a little bit of that that goes on, but i'm also inclined to believe that in terms of the principles that i discuss in the book, he is so passionately committed to these, that what
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you see time and time again in his opinions are almost standard passages that he reuses time and time again. that suggest to me that there are certain things about which he feels so strongly that he doesn't just fly with the winds of change. he doesn't look at what's been written on the editorial page of the "new york times," if he's looking for a liberal answer or the editorial page of the "wall street journal," if he's looking for a conservative answer. maybe he does that, i suspect not with the principles that i talk about in the book though. he's far too wedded to those principles. :
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>> i don't need a translation. i'm nigel and i'm with institute humane studies. congratulations on the book. it's wonderful to see it. you explicitly said that you
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don't consider economic liberty and the book and i completely understand that. i wonder whether you thought, can you see any spillover from the principals in the areas that you do into economic liberty or do you think that justice kennedy sees them as two totally different categories, that he has a different set of principles, or perhaps no principles when it comes to economic liberty? is there any relationship between these two areas in his work? >> what a great question. i think there is some spillover in terms of, if you think about some of the different structural principles that kennedy tries to weave into some of these other opinions. particularly has a federal opinions. there you see some of the principals billing over. but again, i'm going to kind of offer the same response as i offered to the first question, and say that, because that's an
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area i talk about in great depth. i would really only want to give sort of a superficial answer to my question. but yes, i do think there is some kind of spillover. >> could i ask you a question, helen? with respect to both justice kennedy and justice breyer, one can say that their overarching approach to the law and to the philosophy of the constitution is just vague enough so that they can get out whatever conclusions they want. would you care to comment? [laughter] >> the one exception, as i recall, is with respect to the flagburning cases in justice kennedy's case. >> do they do just enough to get their opinions out?
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>> is their overarching approach just a vague enough so that it will allow them to reach pretty much any conclusion they want? in other words, what is the fidelity between the opinions of justice kennedy, justice breyer you can say as well, and the law? of course, that raises the question, is their understanding of the law colored by their approach to it so that they can get out what they pretty much what. >> i think their understanding of the law is definitely colored by their approach to the law. icy -- it's kind of a different country and difficult question for me to edge because i see very different similarities between them. justice breyer strikes me as much more of a pragmatic judicial sole. and so i think he may be fall more into the category that you are talking about and justice
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kennedy. justice kennedy i think is far more wedded to his principles then maybe justice breyer is. >> one of my reactions to that question is that that question could be asked of virtually every justice. unfortunately. regrettably. every modern justice. justices i think can be better explained by their -- by their underlying principles which is what helots book is about with respect to justice kennedy, then with by the text of the constitution itself. even those justices who are more textualists than others, and there are some obviously, tend to have, leave themselves out where under more than one circumstance, and they say we don't have to file the text of the most obvious one is as respected president. so if you have precedent that you like that has in your own view misinterpreted the text but
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you like a president that you can follow the precedent and be consistent with your methodology and inconsistent with the text. said every justice gives himself that out, you could ask that question about every justice. >> i expect you have in mind justice glia in the case wherewith mopeds, boorstin, etc. we might have thought he would uphold the doctrine of the new powers yet he did not. >> and justice kennedy in the case where he did not -- wherein lopez and morrison he had concurring opinions which extolled the virtue of federalism form a state discretionary standpoint unlike justice thomas' concurring opinion in lopez which was a original opinion such as kennedy's opinion in lopez was based on the need for individual states to have experimentation and to be able to make their policy judgments particularly indie areas like crime and other things they had regulated. and in our case we were talking about the regulation of medicine
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which was traditionally a state function, not going to did not vote for us, and i should also say that our brief was aimed more to justice kennedy's view of federalism than any of it just appeared not only did he not go forth but he did not file and altering opinion which justice glia did have the courage to do. he did file a concurring opinion and put his opinion on the line as to why he didn't bofors. justice kennedy did not do that. >> yes. >> from cato. are there any trends in justice kennedy's modest libertarianism? you know, does he rule now in a way that's different before 9/11 or before he had several years of experience on the court? what are the tendencies that are? >> one of justice kennedy's former clerks made an observation among those lines. a very astute observation, that it took justice kennedy quite a
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long time to be comfortable with the power that he had as a member of the u.s. supreme court. now, if you look at the articles that talk about his pompous rhetoric and his extrajudicial activities you might say he has become too comfortable with that power. but i think that was a very astute observation on the part of the former clerks, that it took kennedy maybe a couple of years, two or three years to get comfortable with his time on the court. and his opinions in the flagburning case was a very good example of that. kennedy kind of bared his soul in that concurring opinion, and he has said he sensed regrets writing. he had sort of a public display of handwringing on his part. a couple of years down the line i think when he had been more comfortable with being a member of the court, he probably would have written a concurring
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opinion in that case but not in the same way. i don't think that his principles have changed a great deal over his time on the court. but certainly his comfort level with being able to write the opinions in the way he wants to have certainly become clear over the time. >> rip or any other questions? all right. let me remind you once again the book is available. it is "the tie goes to freedom," justice kennedy on liberty. it's available outside. do take advantage of that and please join us upstairs for lunch after getting a warm round of applause for our guest. [applause] helen knowles is currently a political science professor at oswego state university of new york. professor bowles received the
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2005 u.s. supreme court historical society hughes gossett award as a teaching fellow at boston university where she also earned her phd. a tie goes to freedom is her first book. for more information on the author, please go to >> this summer book tv is asking what are you reading? >> hi, my name is michele bachmann and i'm a member of congress in minnesota's sixth congressional district that i have two books i'm working on right now for the summer and early summer. the first book is by doctor mark levin. it's called "liberty and tyranny." it has been on the bestsellers list for nine of the last 10 years or it has sold over 1 million copies in its essentially a treatise on why conservatives believe what they
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believe. it goes through a number of different issues. it's a fabulous book. i have read it once, highlight highlighted. dogeared pages, i've written notes and all of the margins and i'm cloning everywhere i go. i urge people to read his book. it staggers. i am going through it a second time now and taking more notes on it. i'm also working on another book by a great lady that i have heard several times to get out the book, and it is "the forgotten man" by amity shlaes. it is so timely because she is writing a history of the hoover years of fdr and the great depression. and "the forgotten man" is the american taxpayer who is paying for all of the expense for building out the welfare state. and so it's a fascinating story to see how the american economy is taking a real parallel today in 2009 with the same, or she
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might say action is taken back in the great depression. so it's very instructive for members of congress right now. very pertinent to what we are doing because if they're going to apply the principles of big government intervention, we see how it played out in the 1930 1930s. and a prolonged the depression rather than shorten the depression so "the forgotten man" is a great book here cause we have been able to hear from her personally. we had doctor martin levine here last appeared he had not yet written liberty in tierney, but since his book "liberty and tyranny," there has been so much excitement in washington about that book. and i am hopeful that doctor levin will come back back and allow us to hear from him personally. that's the number one book that i am encouraging all americans to read, it's "liberty and tyranny" and also amity shlaes' "the forgotten man." >> to see more summer reading books and other program information visit our website at
10:14 am >> business week legal affairs editor linda himelstein discusses her book the king of vodka and the life of pyotr smirnov, the creator of smirnov vodka. she talks about smirnov's ride from a lower class family to being one of the wealthiest businessmen in russia. cappers both hosted the event event. is 35 minutes. >> i just go to be here. i love this bookstore. it is just such a wonderful institution. so, the king of vodka, i get asked more than anything else why i wrote this book. and it's actually a really good question, particularly for people who know me well. the research that was required for this book was absolutely a man's. and it was mostly


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