AnthonyKennedy2003

Excerpts of An Address by Anthony M. Kennedy
Associate Justice, Supreme Court of the United States

At the ABA Annual Meeting, August 9, 2003

© 2003 Anthony M. Kennedy
Revised August 14, 2003

See full text at the ABA website.

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Since we last met in San Francisco, momentous and tragic events have occurred. Some say these events changed the world. Perhaps it is more accurate to say the world is the same, but we now have a clearer understanding of what the world is. It is a world where in every nation many people seek freedom above all, but where new enemies of freedom vow to attack it. In a sense this is nothing new. In the last century free societies were attacked from within, attacked by their own citizens, by men such as Stalin, Hitler, and Mussolini. They attacked free institutions because they did not believe an open society, committed to democracy, could provide for the security and welfare of its citizens. In this century democracy’s enemies come from outside the countries they seek to destroy. They, too, see a free and open society as a threat. Once again we face an assault on freedom. Once again we can prevail.

Americans may find the new challenge surprising and disappointing. We tend to think the case has been made that a free society is a stable society, that a free society is the birthright of all people. We do not know why we must make the case all over again when judgment has been given in our favor. History, however, does not acknowledge res judicata. History teaches that freedom must make its case, again and again, from one generation to the next. The work of freedom is never done.

Embedded in democracy is the idea of progress. Democracy addresses injustice and corrects it. The progress is not automatic. It requires a sustained exercise of political will; and political will is shaped by rational public discourse.

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Please permit me to talk with you about two [issues]. The first concerns the inadequacies — and the injustices — in our prison and correctional systems. The second is the continuing need to teach the principles of freedom to our young people, who soon must become the principal trustees of our constitutional heritage and our most treasured institutions.

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While economic costs, defined in simple dollar terms, are secondary to human costs, they do illustrate the scale of the criminal justice system. The cost of housing, feeding and caring for the inmate population in the United States is over 40 billion dollars per year. In the State of California alone, the cost of maintaining each inmate in the correctional system is about $26,000 per year. And despite the high expenditures in prison, there remain urgent, unmet needs in the prison system.

To compare prison costs with the cost of educating school children is, to some extent, to compare apples with oranges, because the State must assume the full burden of housing, subsistence, and medical care for prisoners. Yet the statistics are troubling. When it costs so much more to incarcerate a prisoner than to educate a child, we should take special care to ensure that we are not incarcerating too many persons for too long.

It requires one with more expertise in the area than I possess to offer a complete analysis, but it does seem justified to say this: Our resources are misspent, our punishments too severe, our sentences too long.

In the federal system the sentencing guidelines are responsible in part for the increase in prison terms. In my view the guidelines were, and are, necessary. Before they were in place, a wide disparity existed among the sentences given by different judges, and even among sentences given by a single judge. As my colleague Justice Breyer has pointed out, however, the compromise that led to the guidelines led also to an increase in the length of prison terms. We should revisit this compromise. The Federal Sentencing Guidelines should be revised downward.

By contrast to the guidelines, I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.

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The legislative branch has the obligation to determine whether a policy is wise. It is a grave mistake to retain a policy just because a court finds it constitutional. Courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just. Few misconceptions about government are more mischievous than the idea that a policy is sound simply because a court finds it permissible. A court decision does not excuse the political branches or the public from the responsibility for unjust laws.

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Let us turn now from the subject of those who have broken the social contract to those who soon will assume the full duty to keep it. I refer to the splendid young people in this nation who will become the next trustees of our legal and constitutional tradition. It is my pleasure to extend formal thanks to this Association for sponsoring the program for high school students, the program called “The Dialogue on Freedom.”  ...  This is an exercise for high school seniors or first-year college students. ...  Our figures are imprecise, but we estimate that to date over 140,000 students have taken the class.

The students were asked to assume they were stranded in a third-world country with strong suspicions, or active hostility, to America, to its republican principles, and to its commitment to freedom. Our objective was to show young people that our heritage can endure and spread only as a conscious act. An informed understanding of the foundations of freedom is not a genetic, inherited characteristic. It is taught. Each generation must learn and then teach it again.

I spoke with many of the instructors who presented the program. As is so often the case when we work with young people, there is good news and bad news. There is cause for concern; and there is much to inspire confidence and optimism.

The principle that often motivated the students’ instinctive reaction to questions about basic principles of government was tolerance. At one level this is reassuring. Tolerance, properly understood, stems from the ideas of the Declaration of Independence and the principles embraced by the founders of the Republic. In our legal tradition, and in our constitutional heritage, tolerance follows from the premise that all persons have inalienable rights, including the right to life, liberty, and pursuit of happiness. The exercise of those rights should be respected. Hence the idea of tolerance.

The problem is that all too many young people seem to equate the idea of tolerance with the concept of relativism. This is a grave error. Unbounded relativism as a civic philosophy soon becomes passivity and indifference: No judgments can be made, for it is impossible to place one set of values over another. This is a far cry from toleration derived from a belief in universal rights. If, in the civic sphere, relativism swallows tolerance whole, belief in universal rights turns into no belief at all. According to this view, we cannot judge others because our view of rights has no greater validity than any other. Were this muddled mindset to prevail, America could not teach or transmit the principles of freedom. Some students understand this; others do not. Some teachers understand this; others do not.

Here is an example. We asked students if, when discussing political philosophy in this imaginary place, they have a civic duty to try to persuade other young people not to surrender power to an authoritarian regime. A surprising number of students believed other nations should be allowed to adopt any system and pursue any domestic policy a majority wants. We overreach, they said, if we try to influence the result by offering our views as to what is just. Then we posed a series of problems, leading to the question whether it would be wrong to intervene to prevent genocide or a holocaust. A few students persisted in saying this is not our concern. I was astounded.

This is but callous indifference masquerading as tolerance. This is the distortion of tolerance, not fidelity to the individual dignity from which tolerance springs. By this calculus, the principles espoused by Washington, Hamilton, Madison, and Jefferson mean little.


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[W]e must remember that the legal order rests on certain fundamental truths. These truths must be taught. We must guard against the easy slide into neglect and passivity. The Rule of Law will mean little in a society too apathetic to know that vigilance is the price of liberty.

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[L]awyers know that every battle does not bring victory. There will be defeats, but the defeats will not break our will. In day-to-day debates on how to relate the law to our civic discourse and our lasting traditions, we must insist on rational, principled judgment. By doing so we advance the mission of a free people.

I hope that during this time in San Francisco you will find new ideas, new insights, and new inspiration for your work. Jefferson talked often of freedom and self-government. One cannot exist without the other. It is the mission of our profession to help preserve the role of this nation as the guardian of what Jefferson called the sacred fire of freedom and self-government, keeping it in trust for those other nations benign and enlightened enough to seek it for themselves. Thank you for being united in this historic cause.

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