Judge Kavanaugh’s Inapt Praise Of Anthony Kennedy’s Advocacy Of Liberty

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Alan Keyes Former Assistant Secretary of State
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New reports suggest that most Democrats in the U.S. Senate oppose Judge Bret Kavanaugh’s nomination to the Supreme Court. They think that he will vote to overturn the anti-Constitutional jurisprudence that began with Roe v. Wade.

In the Roe decision, a SCOTUS majority denied and disparaged the unalienable right to life of nascent human beings in the womb, willfully violating the Ninth Amendment to the U.S. Constitution. It plainly forbids construing the Constitution’s enumeration of rights in any such fashion.

This lawless jurisprudence continued with the SCOTUS’s decision in the case of Casey v. Planned Parenthood. In that case, a kaleidoscopic majority of the Court concurred in the sections of the opinion prepared by three Justices — Anthony Kennedy, David Souter and Sandra Day O’Connor (all nominated by Republican presidents) — that affirmed “the essential holding” whereby the Roe majority fabricated a woman’s so-called “right” to murder her offspring in the womb.

Like our nation today, the SCOTUS’s Casey decision is like a stone-struck windshield, fracture every which way by its impact.

The Court’s majority held together because the destructive impact of the blow was not quite enough to overcome the external force exerted, on account of its shape, by the frame in which the windshield is set. The opinion prepared by the three GOP presidential appointees slyly exploited the political basis for that external force when they argued that the SCOTUS’s murderous jurisprudent respect the contemporary understanding of liberty.

The three-judge plurality’s opinion begins, significantly, with the assertion that “Liberty finds no refuge in a jurisprudence of doubt.”  However, they use the word “liberty” as if it simply refers to an individual prerogative. They ignore the fact that it is an essential aspect of the existential good of the American people as a whole:

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage.  Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

Though they contrive to use the plural possessive, the justices assume that “the liberty of all” refers to all individuals. They ignore the liberty of the people, as a whole, which is the common right whence the people of the United States derive their claim to govern themselves. From the moment of its inception as such, the people of the United States rejected the notion that human jurisprudence provides a reliable refuge for liberty.  

When, in the American Declaration of Independence, their representatives first asserted the American people’s unalienable right of liberty, they appealed to “the laws of Nature and of Nature’s God”, not human jurisprudence.  They trusted in “the Supreme Judge of the World,” not worldly judges who disregard the provisions of His endowment for human nature.

As an inalienable right, endowed by their Creator, Americans did not see liberty simply as a function of the human capacity for choice. They did not agree with Justice Kennedy’s infamous assertion that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”  They saw it rather as the consequence of understanding right and justice according to God’s will and choosing accordingly.

This is obviously not a matter of each individual’s “own moral code.” It has to do with understanding right and wrong, justice and injustice, as mandates of the special code that delineates humanity, the code programmed and prescribed by the benevolent intention, and intelligent will, of our Creator.

Like the unalienable rights it upholds, this moral understanding of liberty is inseparable from our common nature, our distinctly human way of being. In terms of our existence as a nation, it is the common good that underlies our right to govern ourselves, a right individual Americans have repeatedly been called upon to safeguard, though it cost them their individual lives and material goods.  

Failure to acknowledge this aspect of liberty shock the very foundations of the Constitution’s authority, much less that of the judges and justices sworn to uphold its terms. Abandoning justice for all using the specious pretext of preserving individual liberty thus destroys the true refuge of liberty, which in principle, as well as overwhelming human experience, depends upon the union.

But that was never reliably achieved and consistently enacted except upon the moral basis of respect for God’s endowment of human right and obligation.

In the fundamental sense, the moral and political good cannot be distinguished in the fashion assumed by the Justices responsible for sustaining, in Casey, Roe’s murderous attack on the unalienable right to life.  But the right to life is the sine qua non of all the rest. This is self-evident.

So one has to suspect that the educated, thoughtful judges and Justices responsible for the attack the riotous judicial assault against the right to life foresaw its destructive implication for constitutional self-government. They foresaw that it would lead people to accept, for the sake of their sexual lusts and power-hungry material ambitions, an understanding of liberty that subverts the wholly standard of right, a standard that refutes the claims of superior human power, because it appeals to the power of God, which forever exceeds such claims.

I thought of all this when I read as I read an email from Phillip L. Jauregui, President of the Judicial Action Group. In it he writes that Judge Kavanaugh’s words of praise for Justice Anthony Kennedy during his confirmation hearing “were unnecessary and deeply troubling”:

Kavanaugh said that Kennedy “was a champion of liberty.  If you had to sum up Justice Kennedy’s entire career in one word: liberty.  Justice Kennedy established a legacy of liberty for ourselves and our posterity.”

Yet Kennedy will be best remembered for his willingness to define liberty without reference to the self-government that is the common good of the American people.

He will be remembered for doing so in order to justify attacking the right to life of all innocent persons, who have no claim to rights except the common heritage of humanity. He will be remembered for helping to seduce the American people to embrace the false concept of liberty that abandons respect the God-endowed moral understanding of human justice and rights intended to implement it.

Is Judge Kavanaugh’s false praise for Justice Kennedy’s destructive legacy in this regard a sign that he means to preserve it for our posterity? Is it a sign that he, too, means to define liberty in terms that must destroy the human sense of liberty as the choice, which Lincoln so movingly evoked, to “do right, as God gives us to see the right?”     

Dr. Alan Keyes is a political activist, prolific writer, former diplomat, and the founder of LoyaltoLiberty.com

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.