A few days ago, U. S. Supreme Court Justice Anthony Kennedy gave an interview with Ray Suarez of PBS. The interview is both illuminating (about Kennedy), and depressing. Here’s a link.
Among other things, Kennedy discusses the Nazi-era rule requiring that yellow stars be worn by Jews, which Kennedy says was so awful as to be inconsistent with the “Rule of Law” --- meaning that Kennedy would have struck down this Nazi regulation as a violation of “due process of law”. Being of Jewish ancestry, I would have been required to wear such a star, and yet I find this statement by Kennedy deeply misguided, notwithstanding his good intentions.
Yes, a competent judge would strike such badges down, because they were not required by any legislature but rather by executive decree; on September 19, 1941, one of Hitler’s appointed henchmen, Reinhard Heydrich, did that deed, without any democratic lawmaking process whatsoever. But that distinction between democratic and dictatorial lawmaking is lost upon Justice Kennedy, who continues to assert that there is no such thing as a very bad or very evil law that he would ever recognize; Kennedy calls himself a “natural law theorist”, empowered to decide which rules are good enough to be “laws” and which rules are not good enough. If Kennedy were correct, then legislatures and electorates would never have the final say about what is fundamentally right or wrong in our society.
Kennedy seems unaware of how similar his own attitude is to that of Heydrich. Like Hitler, Heydrich relied upon purported natural law principles which he believed supported eugenics, because it was supposedly the natural destiny of human beings to improve the gene pool for the benefit of future generations. And, Heydrich believed fervently that his natural law principles should be enforced by decree, regardless of democratic determinations about natural law.
It appears that we as a country have now reverted to rule by judges who are not satisfied with judicial review for compliance with the actual written Constitution, but who also demand compliance with their own beliefs about natural law. Kennedy’s natural law theorizing may sometimes be right and sometimes wrong, and it is a perfectly valid subject for him to muse about privately or in public interviews, but his judicial opinions have now made us all helpless subjects of that theorizing and musing.
Kennedy says (as he has before) that the framers of our Constitution did not believe they had all the answers, which of course is true, but that fact does not imply judges are free to revise and extend the Constitution. The framers compensated for their own acknowledged fallibility by writing Article V allowing amendments, and they also permitted legislators and electorates to change the law even before consensus develops for an Article V amendment. Such niceties are our heritage, for which brave Americans have fought and died, but that heritage is itself dying.
Perhaps it would have been more convenient for Justice Kennedy if the Constitution had said: "No bad rule shall be a law”. Such a clause would have increased his power immeasurably. But no matter; he has informed us that that is exactly what the framers were trying to say, if only they had been literate enough to put the words on paper. Mind you, this is the logic of a man responsible for vastly more carnage than Hitler ever dreamed of.