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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