Judicial activism on display

I canceled my American Bar Association long before I realized I was a conservative. It had gone so overboard in wacko policies that I simply couldn’t stomach sending it my money. This year, the organization gave Justice Kennedy its highest award, presumably so that he could give a speech — this is a judge’s speech, mind you — stating that the rule of law is simply not in the game when it comes to some higher, individual authority unrelated to legislation, precedent or religious morality:

Supreme Court Justice Anthony Kennedy was presented with the American Bar Association’s highest award in San Francisco on Monday and said establishing the rule of law around the world requires looking beyond formal legal systems and confronting injustice.

“We’ve learned that we cannot say to some foreign country, ‘Here’s a red-white-and-blue package, the rule of law.’ … The system cannot be easily replicated,” the 71-year-old Sacramento native said after receiving the ABA Medal at the annual meeting of the 413,000-member lawyers’ group.

“In the developing world, there are not enough lawyers, there are not enough paralegals, there are not enough college-educated persons to make such a system work,” Kennedy told delegates of an organization that sponsors thousands of volunteer lawyers working with their counterparts in foreign countries.

In some countries, he said, half to three-quarters of the population works in the “shadow sector,” with no licenses or legal regulation, and half the people have no official birth records. Lawyers can’t merely advise millions of young people in those nations to wait decades while the groundwork for a legal structure is established, Kennedy said.

But he said lawyers are well-suited to educate and recruit those young people to promote law by fighting lawlessness – families in Asia that sell their young daughters into the sex trade, an African nation that charges fees to women who want rape complaints investigated, nations that hold prisoners incommunicado and without charges for a decade, “the ongoing and looming greater disaster in Darfur.”

Lawyers should tell their listeners, “Here is a cause for your passion and your anger and your youth and your energy,” Kennedy said. And he said U.S. lawyers must also realize that “the rule of law cannot stand here unless you address those problems in other nations.”

I appreciate Justice’s Kennedy’s passion, and the keen sense for human suffering that he obviously feels. However, to advocate the overthrow of the rule of law as a way to achieve humane ends is really not what I want to hear coming out of the mouth of a Supreme Court Justice.

Incidentally, I might be less jaundiced and suspicious about Justice Kennedy’s speech were it not for the fact that he is a judge who has been very vocal about abandoning the strict precepts of our American constitution in favor of some international, loosey-goosey style of law, no doubt heavily influenced by the EU and the UN.

8 Responses

  1. However, to advocate the overthrow of the rule of law as a way to achieve humane ends is really not what I want to hear coming out of the mouth of a Supreme Court Justice.

    Well, that is what happens, Book, when the Executive Branch does whatever the Judicial Branch tells them to do. The Supreme Court judges start thinking they have power over people, that they are the law. They aren’t, however, but the illusion which is created in the minds of men and women by the obedience of the Executive Branch, is the way it is.

    “We’ve learned that we cannot say to some foreign country, ‘Here’s a red-white-and-blue package, the rule of law.’ … The system cannot be easily replicated,” the 71-year-old Sacramento native said after receiving the ABA Medal at the annual meeting of the 413,000-member lawyers’ group.

    “In the developing world, there are not enough lawyers, there are not enough paralegals, there are not enough college-educated persons to make such a system work,” Kennedy told delegates of an organization that sponsors thousands of volunteer lawyers working with their counterparts in foreign countries.

    You see, they are the cause of the problem. When he says “we cannot”, what is really true is that he “will not allow” such things to occur. So he, being the source of the problem, now recommends a way to solve the problem by bringing in more people like him, in to the equation. No.

    In the developing world, there are not enough enforcers to seek and destroy bad people. In the developing world, there are too many Western advocates making excuses for dictators, representing dictators, and taking favors from dictators. Essentially, there are not enough army personnel to destroy crime, mob bosses, and wannabe revolutionaries.

    Education is not the problem, since an orderly civilization can produce educated people (like Japan or Germany) if security is provided to them. But an educated population cannot produce law and order, however. This is not just because of people like Kennedy, either, you know.

    However, there is a specific requirement on what kind of military or police force you need to maintain law and order. The right law and order. See, you need a military and a police force produced from a civilization that already has law and order. But that raises the question of, which came first, the chicken or the egg, but that is sort of beside the point. Without a military or police (enforcement) force from such a civilization, what you end up with is Juntas, military coups, and what not. Kennedy will not allow the use of the necessary force to cure the problem, because he doesn’t want to solve the problem. To do that, he would have to remove himself from the equation. That, he cannot allow.

  2. Justice(?) Kennedy:
    “In some countries, he said, half to three-quarters of the population works in the “shadow sector,” with no licenses or legal regulation, and half the people have no official birth records. Lawyers can’t merely advise millions of young people in those nations to wait decades while the groundwork for a legal structure is established, Kennedy said.”

    Well, he’s certainly put his finger on the problem, hasn’t he? Why doesn’t he tell those young people to organize folks to begin recording names and birth records, village by village and neighborhood by neighborhood. Meanwhile pressuring the ruling class to establish security and transparency in property ownership, taxation, licensure, and so on….. Without these things, those countries, and the unfortunate people who have to live there, will NEVER join the 20th Century, to say nothing of the 21st.

  3. This particular speech isn’t very alarming to me; but the link at the bottom of her post IS very alarming.

    It is the right of the people to amend the Constitution to bring it into conformance with international law. Should we so choose.

    Judges who decide to ignore the Constitution, and instead pick and choose from the bewildering smorgasbord of other countries’ legal rulings… deserve impeachment, in my opinion. It is an outrageous violation of the Constitution, which they have sworn to protect and uphold.

    On the other hand, since speed limits on the autobahn in Germany are non-existent or are set very high, I now have legal recourse to scream down the highway anywhere I wish at virtually any speed I wish. Now that I can freely ignore these silly American speed limits.

  4. I agree with Mike, this speech is not very disturbing at all. Kennedy appears to be saying that we cannot install the rule of law where it has not previously existed as part of a pre-made package, which would presumably include a constitution. We simply cannot export our society to areas that have little to no experience with the rule of law, and basic property rights, and so forth.

    We can, however, provide an example, and above that, as in Iraq and Afghanistan, provide the impetus to allow an organic change in their society, and then the security against chaotic or oppressive elements in order to allow the beginnings of a law-based society to coalesce.

  5. P.S. Kennedy is still what I would call a rogue jurist, just not in this particular instance.

  6. Lawyers should tell their listeners, “Here is a cause for your passion and your anger and your youth and your energy,” Kennedy said. And he said U.S. lawyers must also realize that “the rule of law cannot stand here unless you address those problems in other nations.”

    kennedy has given us his warning. I, for one, will take it seriously.

    Immediately afterward, the association’s policy-making House of Delegates approved a resolution by voice vote calling on Congress to repeal President Bush’s July 20 executive order that prohibited torture and inhumane treatment in CIA interrogations but did not specify which methods would be allowed.

    Backers of the resolution said Bush’s order would permit continued use of sensory deprivation, prolonged stress positions, sleep deprivation and the simulated drowning called waterboarding, all forbidden by international law.

    The resolution demonstrates that “the rule of law applies to all branches of government,” said Kathryn Grant Madigan, president of the New York State Bar Association, which co-sponsored the proposal. “The ABA cannot countenance continued violations of international law.”

    The rule of law. Whose law though? Kennedy’s of course.

  7. Here’s what Bush should do. He should fight in public and very hard to resist them from removing his Executive Order. Then pick a time and place to voluntarily rescind the EO and then execute a line of terrorists by dropping them into radioactive material. On the excuse that now that the Executive Order has been rescinded by the courtesy of NY Bar Assc., there are no protections in law preventing it.

    To move away from the example, in a world in which things made sense, either international law applied to keeping terrorists safe, in which case it doesn’t matter what Executive Order is vague or not when given, or there is no protection except for the existence of the E Order. In the latter case, you would not wish to repeal the E Order because it would then remove the protections from the people that you sought to protect. In the former case, you would not have to repeal a vague order because international law should be specific enough to enforce things. However, this is not a world that makes sense, you see. This is a world in which international law is said to apply yet people act like it doesn’t exist. This is a world in which people trying to protect terrorists know that if they remove the protections from terrorists, that they will still be protected without the need for laws that say they must be such as Executive Orders.

    Somebody needs to straighten this world out.

  8. I suppose I can add why Kennedy’s speech above did not seem so alarming to me. His theme is (to me) that a rich complex legal system cannot simply be dropped into place onto a state or country that does not even have a legal system. As with democratic institutions, it must be developed over time.

    Some of his speech is objectionable.

    “… he said U.S. lawyers must also realize that “the rule of law cannot stand here unless you address those problems in other nations.”

    That is incredibly silly. If any one country in the world is lawless, then the law in all other countries is invalidated and worthless??? Here I’ve always thought that civilization takes root in one place and then spreads. But apparently, if any place is uncivilized, then no place is civilized. Dang.

    “We’ve learned that we cannot say to some foreign country, ‘Here’s a red-white-and-blue package, the rule of law.’”

    There is a strong whiff of anti-Americanism in this statement, at least in tone. I think Justice Kennedy’s Freudian slip is showing.

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