The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty

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Anthony M. Kennedy: “Speech Is the Beginning of Thought” | SpringerLink

You can go to cart and save for later there. Helen J. State University of New York. Her research focuses on legal theory and history. Kennedy on Liberty , and co-editor with Steven B.


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  • In addition, she has authored numerous articles, including one that won the Hughes-Gossett award from the Supreme Court Historical Society. At the ideological center of the Supreme Court sits Anthony M. In June , for instance, Kennedy joined the majority in Gonzales v. Raich , siding with the federal government against the people of California, who had legalized medical marijuana and thus run afoul of federal anti-drug laws. Later that same month, Kennedy joined the majority in Kelo v.

    City of New London , voting to uphold that city's controversial use of eminent domain to seize private property for the benefit of the powerful Pfizer Corporation. Kennedy on Liberty , political scientist Helen Knowles takes a different view. In her telling, when it comes to free speech, race-based classifications, gay rights, and abortion, Kennedy's jurisprudence actually qualifies as "modestly libertarian," consistent, Knowles argues, with "the basic, fundamental principles" of individualism and limited government.

    As Knowles is careful to explain, her arguments apply only to those four areas. Which is a good thing for her thesis, since Kennedy's votes in Raich and Kelo —among other cases—were not even remotely libertarian. The book's misleading title aside, Knowles makes a strong, though not entirely persuasive case.

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

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    The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty

    He brings a similarly individualistic viewpoint to the question of race-based classifications. In his dissent in Metro Broadcasting v. Furthermore, as Knowles writes, "Kennedy champions individualized equality, rather than group-based equality, regardless of whether the characteristic at issue is race or sexual orientation. Texas , which struck down the state's sodomy ban as a violation of the liberty protected by the Due Process Clause of the 14th Amendment.

    In his dissent, Justice Antonin Scalia ridiculed Kennedy's opinion, arguing that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change. It simply "require[d] the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow 'fundamental.

    Which brings us to Kennedy's abortion rulings. As Knowles points out, many liberals were shocked in when Kennedy authored the majority opinion in Gonzales v.