Justice Kennedy at the ABA

U.S. Supreme Court Justice Anthony M. Kennedy’s keynote address to the ABA opening assembly was a call to action.

Thank you very much ……..thank you very much for inviting us here in Honolulu….

I wish you well in your deliberations….(story about lost luggage)…

………”No, I’m just a faint reflection of my existential self.”

Lawyers should know who they are. You are the direct professional descendants of forbearers who for centuries have not only helped tell the human story but to help shape the human story. Civilization is a conversation over time and in our culture, in our history and our heritage no one group has been more important in telling that story than lawyers and judges.

Hamlet tells Polonius, “take care of the players, make sure they are well disposed.” He said they are the abstract and brief chronicles of our times. He should have said that lawyers and judges were also the abstracts and brief chronicles of the times. Since from at least the time of Henry the Second, from the thirteenth century, courts have been giving reasons for their decisions. And it’s not because courts, judges, know about society around them. They are a sometimes cloistered, reclusive group, but they listen to lawyers first and they write judgments over time; they describe in a historical sense our sense of justice. And they describe in a normative sense what it ought to be.

The judges of ancient times were familiar with the dualities and the tensions that all humans have over all time. They were familiar with the dualities of ignorance and insight, malice and magnanimity, duplicity and dedication to tell the truth. And they were puzzled, as we are even today, about some human actions and some human instincts. Consider the example Holmes gives. I’ll ask the command mea students. The man begins to close his own door and he pinches his finger. What does he do? He kicks the door. Now, even though animism, ascribing a moral sense to an inanimate object, had some roots in ancient times, I’m pretty sure that in the thirteenth century the man knew that he shouldn’t kick the door and that after he did, it was the man and not the door that looked pathetic.

But there is also an instinct to punish for a wrong when it’s committed by someone who does have a moral capacity. And this is vengeance. The criminal law addresses that as retribution and in a proportional and measured sense it is sometimes necessary. Although humans and nations, then and now, use vengeance and over-react.

So these are the dualities that the common law was familiar with centuries ago. Actually, the example of punishing a door was carried over to Admiralty law. So, if a ship collides with another ship, then she (we ascribe an animate existence to the ship) is forfeited. An irrational instinct, kicking the door, has a rational analog and that’s because the ship provides a ready source of funds against the owner who’s a half a world away. And it also limits the liability of the owner.

So the common law was beginning to work through these things and, of course, the common law faced dualities that have now been clarified and dispelled in our intellectual history. Centuries ago the difference between superstition and psychology, between folklore and physics, between the laws of God that are taken by faith and the laws of nature that can be proven were obscure and it’s a magnificent tribute to the legal process that the common law was able to emerge from centuries of darkness and obscurity in human thought.

The eighteenth century was a turning point and for the law two important things happened in the eighteenth century: first there was a great writer by the name of Blackstone. Blackstone gave a cohesive explanation of the common law in his commentaries. (In the American colonies, the second biggest selling book, right after the Bible was Blackstone Commentaries. We didn’t have lawyers, but business people, tradesmen, planters had Blackstone on their desk). We became a people that was committed to the rule of law.

The second thing that happened, of course, in the eighteenth century was the fruition of enlightenment thought. The Enlightenment was of tremendous importance for the civilized world. Isaac Newton, for over a hundred years was the most famous person in the world. The average person didn’t read his thesis on physics, but this business about the apple falling down made sense. And people wondered, if we can explain the laws of the universe, can’t we explain the principles that should control the government? Can’t we have a government by conscious design? And so the framers drafted the American Constitution.

I sense, President Greco, as indicated in your opening remarks, that we are at another turning point in the history of the law. The Constitution gave us judges. It’s really remarkable that it did. Remember that attacks and complaints against judges were one of the indictments, one of the allegations, in the Declaration of Independence. The framers had been pushed around by judges, and what did they do? They created a judiciary and gave them life tenure. Why did they do that? Because they were confident that the process of reason, the slow elaboration of the principles of justice through the case by case method was the surest way to interpret the Constitution.

The framers knew that they were not prescient enough and they were not brazen enough to specify all of the elements of justice. They knew this would become apparent only over time. They knew that the whole purpose of a Constitution is to rise above the inequities and injustice that you can’t see .

But now we are in an era where I sense something different happening. We know the truth needs no translation. There’s a word for truth in every language. We know that the world is getting smaller. We know that the rule of law is essential. We hear a lot about security. But our best security, ultimately our only security is in the world of ideas and I sense a slight foreboding. I sense that we are not making the case as well as we ought. It could be, to use a Pacific metaphor, that the tide has gone out and we are on the beach, but a tsunami of expectations and discontent and demands and dissatisfactions may soon sweep in upon us. We must explain to the rest of the world the meaning, the essentiality and the purpose of the rule of law as it’s understood by the American people and by other democracies throughout the world. And we must begin to do a better job of it; and we must begin to do it now.
(lengthy applause)

I was here in Hawaii, Governor Lingle, just a few months ago and met with the University of Hawaii law students and I asked them, “what does the rule of law mean?” You know, I never heard that term when I was in law school. Now lawyers bandy it about a lot. Should it not be defined? If you parse it as a grammarian might, it doesn’t always work. You might have a dictator with laws that are known and that are enforced. But that can’t be the rule of law–the rule of law does not exist just because the dictator makes the trains run on time.

And so I tried to define the rule of law. And before doing so, there were certain caveats, there are certain risks. The phrase has a certain resonance, an allure, that you are reluctant to destroy. And we’re often reluctant to talk about universal truths, lest our efforts at formulating their specifics seem too bland, too insufficient for the great purpose behind the phrase. So there’s a risk when we talk about the rule of law–that you say too little, or that you say too much. That you say too little, and you are facile, thereby preventing us from discovering other truths. That you say too much and that you are prolix. There’s a reluctance to open the bidding so that every interest group has its particular interest, it’s particular goal, incorporated in the rule of law.

I always wanted to teach a law school course in Constitutional law to some very bright students who’d never read the Constitution. And the way I’d it is I’d say “now here it is, but you can’t read it. I want you to tell me what you think the Constitution should contain, if it’s a model constitution.” They’d look and I’d say “now don’t peek. ” And, just as an academic trick, I’d get them interested. I’ve done the same thing for you, and I’m glad it’s dark because I don’t want you to look at it. I’ve given you a little definition of the rule of law. I have one here for all of the command ……. too.

What would you put in your definition of the rule of law? Would you talk about process, knowing that there are certain truths that are not evident to us now–that we are blind to the injustices and prejudices of our own times? So would you just talk about process? That really doesn’t suffice; it’s not elevating enough. So you must talk about substance. What is the substance that you include? I suggested that the rule of law has three parts. This is simply a working definition.

If we were in a law school class in the University of Hawaii, if we had more time, you could probably make some suggestions for how this should be improved. But I think it’s important for us to begin assessing where we are in this campaign to explain the meaning of freedom, the meaning of the rule of law to a doubting world. My friends, make no mistake. There’s a jury that’s out; it’s half the world; the verdict is not yet in. The commitment to accept the Western idea of democracy has not yet been made and they are waiting for you to make the case.

I suggest that the rule of law has three parts. The first is that the law is binding on the government and all of its officials. This may seem a rather self-evident matter, but it’s a proposition that most government officials in most countries do not fully understand. If an administrative agency and an administrator in that agency is charged with giving you a permit, the permit is not given to you as a matter of grace; it’s given to you because you are entitled to it and because it is his or her duty to give it to you. Very few countries in the world understand this. The rule of law binds the government and all of its officials. This is an essential lesson that must be taught, if the corruption and the greed and the graft President Greco referred to are eliminated.

The second part of the rule of law is there for you on the little slip. It is, in a sense, I think, the most troubling for me. I am not sure that it’s complete. It says that the rule of law must respect the dignity, equality and human rights of every person. And then there’s a second sentence and the second sentence says that the people have a right to have a voice in the laws that govern them. So, there’s a process element, but it isn’t just process. Because the right to participate in government is nothing less than the right to shape your own destiny. And the framers of our Constitution made it very clear that each generation has a share, has a chance to determine its own destiny, to determine its own direction.

What are human rights? Is it the right to subsistence, the right to enough to eat, the right to breathe clean air, the right to an education? At this point, the rule of law, as we, I think, would want to define it, may depart from the ideal of a model constitution. These are two different things.

In the Constitution of the United States there are a series of essentially negative demands/commands:
Congress shall make no law restricting free speech or the free press.
There shall be no unreasonable search and seizures. These are negative commands. It’s easier to have the Ten Commandments–thou shall not steal–than the Sermon on the Mount–thou shalt love thy neighbor. It’s harder to enforce the latter.
But what about affirmative rights? Aren’t there some basic human entitlements? You see a man on a steam grate on a cold night in winter in Washington DC and you say, “well, you know you have a right to a jury trial.” “And you actually have a right to own a newspaper.” He said, “I’m cold. I’m hungry. I want to eat.”
Americans have to understand that if the rule of law is to have meaning, substance, hope, inspiration for the rest of the world, it must be coupled with the opportunity to improve human existence.

I became interested a few years ago in water systems in Africa and I have attended a few lectures about it. Not long ago I heard a speaker say the following, He asked this question, “How many hours of human labor per year are spent in the continent of Africa getting clean water?” It’s work that falls on the shoulders of women. The answer was eight billion hours a year. I was sitting in an audience like you’re sitting and I said to myself, “did he say eight million–no that can’t work out. Or was it eighty million? ” The answer is eight billion and I asked him about it later and he said that’s very conservative because I’m only talking about water that’s clean when it gets back to its source. The biggest single cause of infant mortality in Africa and other underdeveloped nations is diarrhea. Children with a slight body mass the heart has nothing to pump against when it’s dry. This can be fixed. This is not rocket science. And one of the reasons it can’t be fixed under present conditions is that governments are corrupt.

And people have a right to improve their lives, to gain basic security, without corrupt governments depriving them of the very means of existence.

My third suggestion (and it can only be a suggestion–it would be presumptuous to say I can define the rule of law), my third suggestion for you to think about surprised me when I wrote it. And it was this: that every person has the right to know what the laws are and to enforce them without fear of retaliation or retribution. This is almost a process-sounding precept, but it’s again substantive, as well. It’s part of your identity, it’s part of your self-definition to know the laws that protect you, to know the laws that are respected by your neighbors and friends and family. This is part of who you are. And you’re entitled to know this. And you’re entitled to enforce them.

I was talking not long ago with some lawyers and judges from Bangladesh. They told me that a standard criminal sentence works something like this: a fine of three dollars or nine to twelve months in jail. And at least a thousand people a year spend a year in jail for want of the three dollars. I said I’m not a man of great means but I’ll write you a check for a thousand dollars; that will take care of 333 people. And they said, well no, but then there’d be no deterrence.

Is a nation, is a people, is a culture, is a society, able to embrace the Western idea of the rule of law under such conditions? I suggest to you the answer is, no. We must find some ways to link the rule of law with real progress in improving the condition of human kind. We must have some measures to insure that the vast aid, the work of the NGOs, the work of this association has some immediate, tangible return so that we can make the case.

You were gracious to mention my remarks, President Greco, in San Francisco when you last met in that city. We talked about the criminal justice system and I mentioned at the time a book by Alexander Solzhenitsyn, called “One Day in the Life of Ivan Denisovich,” And it occurred to me when we were coming here to Hawaii, that Solzhenitsyn might be relevant in a somewhat different connection. He was a writer whom I greatly admired; he’d escaped from the Soviet Union and from a gulag in order to write about that experience. And he was living in the United States. He was invited to Harvard to give the most important address given every year to the students. It was in the mid or late seventies; I was living in California at the time. And I was thrilled that my hero was addressing the Harvard College. And this was pre-fax or internet days so it took me a few days to get the text of his remarks from the New York Times. And I was shocked, stunned, terribly disappointed to read his remarks in which he attacked the West and particularly the laws and the legal system. And he said that any society that defines the tissues of human existence in legalistic terms is condemned to spiritual mediocrity.

My hero was saying this about my profession? about the Constitution that is America’s self-identity? about the Constitution that Americans still think as defining who they are as a people? I reflected on it a few days and then I got the answer. We just define law differently than Solchenitzen did. From his era, from his culture, law was a diktat, a ukase, a command, a mandate; in sum, it was a cold decree. That’s not the meaning of law as our nation and our co-democracies define it. For us law is a liberating force. It’s a promise; it’s a covenant; it says that you can hope, you can dream, you can dare. You can plan; you have joy in your existence. That’s the meaning of the law as Americans understand it and that’s the meaning of the law as we must explain it to a doubting world where the verdict is still out.

You can make the case; you must make the case and that’s because freedom, your freedom, my freedom and the freedom of the next generation hangs in the balance. I am confident you will do this. Thank you.