Justice Kennedy Waves the White Flag. We Soldier On.

By Jason Jones & John Zmirak Published on June 27, 2018

Justice Anthony Kennedy has enraged his one-time well-wishers. A writer on Comedy Central is joking that the wrong Kennedy got shot. Howls of rage and betrayal fill up social media. And who can blame them?

After all, he abandoned the fight. Kennedy could have soldiered on through the next two (or more likely, six) years of President Trump. He could have helped anchor a five-justice slim majority that kept key social questions (abortion, marriage) dangling out of the voters’ reach. Given the age of the other justices, that might have held, at least for as long as Weekend At Ruth Bader Ginsburg’s continued its gruesome run.

But now he has thrown down his rifle. Like the draftees in World War I on both sides who knew that they fought for nothing, he deserted. That’s what fighting for Nothing produces: summer soldiers and sunshine patriots. It’s hard to find men for the long haul, when their cause isn’t even brashly unjust, but simply incoherent. A blank flag is really a white flag. So you stack your arms and surrender.

Sophomoric Numinous Balderdash

When we say that Kennedy fought for Nothing, we mean it quite literally. The vision of liberty that Kennedy’s opinions enshrined as binding Constitutional jurisprudence was a void. A gap, a hole in Being akin to the “nothingness” that Jean Paul Sartre used to describe human existence. And that was fitting. The logic of Kennedy’s argument in Casey v. Planned Parenthood about American liberty was numinous balderdash, as Sohrab Ahmari has written. Ahmari sums up the infamous decision this way:

[W]hat lies at the heart of liberty, Kennedy argued, was something utterly mystical having to do with figuring out the meaning of life for yourself. And the state, he went on, can’t impose an answer to these mystical questions. Each citizen must figure out for herself what the meaning of the mystery of life is. And if unlocking the mystery of life involves the taking of life, well, the state can’t intervene against that, either.

As one of us said, more bluntly:

The Progressives and the Futilitarians Are Wrong

You can’t beat something with Nothing. Not in the long run. That’s why conservatives who have inexplicably accepted that Kennedy was right about the U.S. Constitution are giving up on America. If you follow Patrick Deneen, then our founders were lockstep Lockeans. That means they were secretly Hobbeseans. (Again, this is his argument, not ours.) However many thousands of words they wrote to the contrary, the founders cared nothing for virtue. For duties that come with rights. Or for the common good. Nor even the laws of Nature and “Nature’s God.” All that rhetoric was the curtain that hid the Wizard of Oz. They really just worshiped the single, hollow atom of the Self, and its absolute freedom to spin in the meaningless, cosmic void.

On every topic but sex, the State must reign supreme.

And of course its right to have sex. Every kind of sex, without any kind of children. That is almost the only subject on which today’s Progressives show any interest in liberty. The green lady in New York harbor for them is an idol they’ve trapped in the bedroom. Or a sex robot they’ve realized can also be hacked to help with euthanasia. On every other topic, the State must reign supreme. Not even the democratic state, which bends to the wishes of grubby, deplorable voters. But the Deep State, the elite State, the managerial and judicial State which elites know how to control.

Is It Time to Flee the Country?

If all this were right, then we ought to run up the white flag. Christians should not retreat into “Benedict Option” communes. These would quickly be overrun, and their children placed in foster care to save them from “transphobia.” No, if these theorists of liberty-as-nihilism were right, we ought to be actively emigrating. Get out while the getting is good. (We hear that Poland is lovely.)

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But Kennedy’s logic is only true if the Court affirms that it is. The Supreme Court, long politicized by the left, is now an active branch of government. In fact, it’s the highest one: a permanent, sitting Constitutional convention. So whoever controls it gets to decide how to read the Constitution.

Recover the Founding’s Meaning

Now we wouldn’t want crackpot theocrats on the Court, who’d decide that the Constitution really imposes a Catholic or Baptist or Muslim theocracy. No, we want people who respect the real meaning of words. Who look at the actual cultural context in which that document was written. We want the kind of justice who troubles to understand our founding in its own words and on its own terms. An “Originalist” like Scalia, or a natural lawyer like Thomas.

The nihilist version of liberty that Kennedy and Deneen claim to see was entirely absent among the founders. Not one of them believed it, not even the Deist Thomas Jefferson. Or the skeptic Ethan Allen. If there’s a void in the Constitution, it’s there: the number of founders who believed in metaphysical universe building. It was zero.

Read Thomas West’s The Political Theory of the American Founding. You’ll see that the nihilist version of liberty that Kennedy and Deneen claim to see was entirely absent among the founders. Not one of them believed it, not even the Deist Thomas Jefferson. Or the skeptic Ethan Allen. If there’s a void in the Constitution, it’s there: The number of founders who believed in metaphysical universe building. It was zero.

West lays out instead three different sets of grounds on which liberty might be premised. He says that some of our founders believed in one or two or all three. But each of them played a part in creating our founding documents. So each should serve as a lens for honestly interpreting them.

The God of Nature

No, the U.S. wasn’t founded as a de jure Christian nation. Which is just as well. Nations with overtly Christian monarchies include Great Britain, Spain, and Sweden. But almost all of our founders counted on the de facto Christian culture to furnish the moral capital that saved liberty from license. Still, many founding fathers cited God insofar as His laws could be known by human reason. That’s a long-winded way of saying “natural law.” Nearly every major founder, including even the Deists, cited this as one of the grounds for natural rights.

The Moral Sense

Many founders also cited this as a reason to offer men liberty and treat them as equals. It was here that the seeds of destruction for slavery were planted. John Adams, Benjamin Rush, and Thomas Jefferson were eloquent on this subject. So was John Locke. We know by looking in our hearts that we have no right to be tyrants over our fellow man. Likewise, we feel deep resentment at the thought of being tyrannized.

The Natural Fitness of Things

This ground for American liberty was the most popular, West claimed. It didn’t rely on acceptance of God’s existence, or debatable claims about the verdict of human conscience. Instead it simply pointed to indisputable facts: No men or set of men were clearly superior to others. None were fitted by nature to take the rights of others, and govern adults as if they were lifelong children, or herds of cattle.

The Supreme Court Justice We Need, and Must Demand

America needs jurists on its highest, politicized court who look to deep considerations like these when they read the Constitution. Not elite opinion, shaky social science, postmodern theory, or various forms of Marxism rebranded as “intersectionality.”

America is unique in that it was founded on a set of assertions about human nature. If we want the country to go on thriving and keeping us free, we need to learn these assertions. To discover again that they’re true. And to fight for them on every front where they’re endangered.

Our flag isn’t blank. And we will never surrender.

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  • James

    If God’s laws can be known by human reason, then why do so many reasonable humans disagree on what, specifically, they are?

    More often “Natural Law” comes not from a search for truth, but is merely a justification for traditional and religious beliefs.

    • Patmos

      To answer your question: Light has come into the world, but some loved darkness more than the light.

      • James

        Your statement only proves my point.

        If I don’t agree with your justification of traditional beliefs, then it must be because I am evil.

        This is exactly why people don’t take Natural Law arguments seriously.

        • Zmirak

          They don’t take them seriously because they’re lazy. Human beings can differ and be WRONG, as hundreds of millions over centuries have believed in burning witches, killing heretics, or sacrificing infants.

          • Karen

            So, what does the state do to those who have the wrong kind of sex?

          • Chip Crawford

            The sky is falling … the sky is falling … I know, because a piece of it fell on my head …
            Don’t be offended, please. I’m just trying to make an excuse for your utter imbecility expressed here.

          • Karen

            Yes, actually, it IS falling. You are a fascist and want to implement the laws of the Republic of Gilead. I want that stopped. If you are not a fascist, please convince me. Show me how a conservative marriage allows the woman to have any kind of freedom or authority? How is a man supposed to treat a wife who disobeys him?

          • James

            Were you in an abusive marriage or relationship or raised in an abusive household?

          • Karen

            That depends on how you define abusive. There was always a lot of yelling. My husband was definitely raised in an abusive household, but since they were at mass every Sunday, nobody cared.

            Mostly, I have seen the effects in the lives of my friends of the kind of misery that women experienced trying and failing to force themselves into the conservative corset. Their husbands made all the decisions, often quite stupid ones, and they and their kids suffered silently. Kids who couldn’t go to college because of Dad’s dumb business decisions; daughters who spent their lives believing they were dumb and useless because conservative Dad said every day that women were inferior. Even if Dad didn’t use those words, the constant repetition of jokes about how unreasonable women were, about how Mom couldn’t drive, how Mom was fat and ugly and Dad could easily find a newer model. The constant drip drip drip of men’s contempt for women, but always expressed in a way that made any response appear to be crazy or impolite. I paid attention, and still see it. Conservatives hate women but find ways to say that in dog whistles.

          • James

            Not to deny the reality of dog whistles, but it is always possible to read the worst into something, even if that is not intended. Always assuming the worst will make you crazy.

            I believe in equality. In the negative sense, equality means that women are every bit as capable of stupidity and abuse as men are, though their tactics and the results tend to be different. (e.g. If a man hits a woman, he is more likely to hurt her than the other way around.)

            Perhaps this is a generational thing, but I heard far more about how boys were bad and girls were good from overwhelmingly female teachers. Rarely was it directly stated, but it was frequently implied. I went to college in an era when colleges were 57% female and there is concern about why boys aren’t going to college. “Girl power” was a thing. Now, so is “toxic masculinity”.

          • Karen

            I’m glad you believe in equality. For what it’s worth, I completely agree that humans are all deeply fallen and niether men nor women has a monopoly on either evil or goodness.

          • Tim Pan

            I think you are on the WRONG website.,

          • Chip Crawford

            You are an abuser. Hurting people hurt people, understood. But you are carrying your anger and resentment and lack of resolution into everyone’s world around you. There are many avenues for help, deliverance and restoration in our world today. You can access one or more of them. To superimpose your negative experience on others is carrying the abuse forward. You are now an abuser yourself. You can be free. God always hears those who reach out to him from their heart. He will carry you out as much as you will let him. He is love and he is good. He is willing to use his wisdom and power on your behalf, if you yield to him. If you cannot even trust God, I fear for you and those around you for the potential of more abusive volubility. Please consider getting free in God.

          • James

            Whatever the penalties, in the past, rules of evidence made the enforcement of these laws nearly impossible.

          • Karen

            You move the goal posts. What should be the penalties for the wrong kind of sex?

          • James

            If the law is not enforced, then what does it matter what the penalties are?

          • James

            And there were “reasonable” arguments in support of all of them.

        • Patmos

          “then it must be because I am evil.”

          Except the context for that verse deals with mercy, not condemnation. Perhaps I should have been more clear. The Spirit of mercy, that is The Holy Spirit, allows people to work out their own salvation with fear and trembling (Phi. 2:12) as the long suffering of the Lord is salvation (2 Pet. 3:15). To live any other way is to be a slave, or to quite simply be without a conscience. Yet at the same time it is the conscience that sparks people to act and speak out against lies and injustices, so the notion that people should just sit idly by as people harm society or at least themselves is to ignore that conscience.

          In the end if you want to know God’s laws all you have to do is read the Torah, and yes they can be reasoned through, though I will admit that’s not an easy task to sort through the barriers of language, time, and culture. It’s one of the more interesting things about the Bible: The purpose of the laws given to Moses, and how they are far from being arbitrary.

          • Karen

            What happens if I read all those things and still think that abortion should be legal? What about things like, oh, wives having separate bank accounts? How does natural law handle cases where consciences differ?

          • James

            “The purpose of the laws given to Moses, and how they are far from being arbitrary.”

            Like wearing clothes made from different types of cloth?

        • Kevin Quillen

          Apparently you no nothing of the founding of this country.

  • Patmos

    Whaaat?! You mean to suggest there’s a difference between a conscience and carnality??? That makes you a racist Nazi bigot. I will tolerate you only if you become like me and erase human history from your memory, deliberate nothing, and concede that you are what I tell you you are.

    • Karen

      So what kind of sex will your state allow? What kinds get people arrested?

  • James

    If each citizen should not figure out the meaning of life for themselves without the interference of the state, then who, might I ask, should the law appoint to do that for them?

    • Patmos

      If by “law” you mean the state, you sort of answered your own question: The state shouldn’t be the one appointing anything. The separation of church and state does not mean the abolition of the church. On the contrary, it is the church that is to provide leadership for the state, not as an establishment of the church as state but rather to infuse the state with wisdom.

      • Karen

        Who gets to make the decision? Do we go back to ancient Rome and the antebellum slave South, where the Paterfamilias decides everything for the humans he owns, including his wife and children?

      • James

        It means the church is no more privileged than any other civic institution.

        If two churches disagree, then what?

  • Chip Crawford

    Huh? After the title and the first line, why try to negotiate the rest? There is a host of amazing candidates in the wings — surely some more socially conservative than Justice Kennedy. This is a break. Since Sen. Reed put in the 51 vote “nuclear” option for the Court nominees, the filibuster won’t help the Democrats. The small majority will be enough – we certainly hope, even with the divisions in the GOP. Hey, relax. This is going another direction, and that’s actually good.

  • Tim Pan

    Elections have consequences. So vote in November.

  • Alan

    Am I the only one to ask, “What in the h… are you talking about?

    • Chip Crawford

      No, apparently the writers are at issue with this soon-to-be former Justice to start with. However, I sincerely believe “none of the above” applies here. God is working in our country and civic affairs, and he can surprise us. But the devil is working as well, so we need to pray and draw near to the Lord and stay there. It is possible to recognize God’s way in a matter when that near, which He intends. While well intentioned and maybe spot-on, the musings here are actually moot and rabbit trails. God told us his thoughts were higher than ours … often simpler to make better … like another Gorsuch is on tap. It would perhaps be more to the point to have on-point edification on the developing civil war in America across the board.

    • Chip Crawford

      No. While those issues may exist, aren’t they a bit moot at this point? Maybe God is moving the man on to other things, just plain out and/or answering Christians’ prayers, wanting to give us another Gorsuch. We perhaps need to be considering how to conduct ourselves in this developing civil war over the clashing views each one of us faces in our own realm.

      • Alan

        Thank you Chip, you should have written the article!

  • America was founded by Masons and Deists and as Pope Leo XII taught, a nation that abandons God wlil become atheistic and as Dr E. Michael Jones observed, any nation that abandon God is doomed to be ruled by Jews and Anthony Kennedy was, effectively a Talmudist.

  • John Trenter

    Excellent article once again, Jason and John, many of us really appreciate your insights. Personally, i think Pres. Trump is heaping a bit too much praise on Kennedy but like me, perhaps Trump is so joyful over Kennedy’s departure that he is willing to be quite generous right now. i do not know about you guys, but at present I am leaning toward Sen. Lee and I am absolutely thrilled that we finally have prospects of the horrible RVW decision to be legally reversed and made sound after several decades of genocidal disaster years based all on a made-up right to privacy based on awful legal reasonings. Good day, gentleman!!

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