In the 1992 opinion Kennedy included what the editors of First Things dubbed the “notorious ‘mystery passage’”: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” You’d search in vain to find a more apt description of our secular age. It’s not as though Kennedy invented our culture of expressive individualism. No one would fault him for introducing our “age of authenticity,” to borrow a phrase from philosopher Charles Taylor.
But Kennedy gave language to this age’s turn to self as ultimate authority. And then he codified that authority at the nation’s highest legal level through his interpretation of the Constitution. Without the “right to define one’s own concept of existence” and “the mystery of human life” we would not still today have the legal right to deny existence to babies in their mothers’ wombs. We would not have the right to deny these helpless children, our very offspring, their own chance to define the mystery of human life. Abortion is the fruit of a culture that cannot live for or even imagine anything meaningful beyond the self. Abortion is the cost we pay to ensure the self will not be encumbered by the consequences of its choices. Abortion is the reason Kennedy’s retirement triggered apocalyptic predictions from the gatekeepers of this self-centered morality.
Kennedy’s “notorious mystery passage” would re-emerge in another age-defining Court decision. Writing for the 6-3 majority in the 2003 decision Lawrence v. Texas, Kennedy once again returned to what fellow Justice Antonin Scalia denounced as the “famed sweet-mystery-of-life passage” that “ate the rule of law.”
Scalia was absolutely correct about this. Kennedy's doctrinaire, philosophy-for-idiots, version of Libertarianism "ate the rule of law," trumping all other considerations of legal and political principle.
Americans seem to have an instinctive aversion to philosophy--or so many claim. But philosophy is one of those things that everyone has, even if they deny it--the denial is itself a philosophical position. The default philosophical position for most Americans--of both Right and Left--is a muddled Libertarianism. What that means is that most Americans find it difficult to argue against the likes of Anthony Kennedy and his "sweet mystery of life" view of the Constitution. We feel constrained, willy nilly, to opt for "tolerance", even when tolerance leads to intolerable results.
That is exactly the slippery slope that leads to the seeming paradox that Libertarianism--the supposed ideology of individual liberty--in fact leads to results that are inimical to human dignity and true individual freedom. Here are some excerpts. I of course urge everyone to read the entire article--there is much left out of these excerpts:
In the end, the freedom to abandon family, faith, and community is the freedom to be insecure, insignificant, and alone before the Leviathan of government.
David Marcus, The Federalist’s New York correspondent, recently tweeted that he can’t make up his mind about whether he fears “the socialists or the libertarians more.” ...
Astute libertarians (or classical liberals, for those who prefer that label) recognize that political liberty has cultural prerequisites. We are born neither free nor rational, but come into this world dependent and lacking in reason. Care and instruction are necessary for us to attain even some freedom and rationality, along with the virtues needed to exercise them well. As wise Americans proclaimed since the founding of our nation, only a virtuous people is capable of sustaining self-government.
The often-tenuous conservative-libertarian alliance has rested upon this truth, with conservatives recognizing the potential for large, unrestrained government to corrode a healthy culture, and libertarians aware that limited government is dependent upon cultural antecedents that promote and protect the virtues required for self-government. Practical libertarianism requires strong families, churches, and communities, which provide stability, a sense of belonging, and the moral instruction that enables self-government.
Many libertarians appear to have forgotten or never learned this insight, as they now seem eager to condemn cultural conservatism as incompatible with individual autonomy. Such libertarianism is hostile to traditional forms of community, especially the family and church, which it sees as repressive and restrictive.
For example, libertarian advocacy for legalizing drugs and prostitution seems to arise less from the prudential belief that suppressing these vices causes more harm than good than from a philosophical commitment to maximizing individual autonomy. But hard drugs and prostitution are degrading, and they lessen the human capacity for responsible self-government. In these and many other ways, today’s libertarianism allows and even encourages the destruction of the virtues and associations necessary for successful self-government.
The paradox of libertarianism is that it depends upon cultural capital it cannot replenish. This is why John Locke’s social contract theory begins with independent adults who reason like well-trained British barristers, even though the state of nature could not produce such individuals. ...
The libertarian challenge is ... to cultivate people capable of sustaining self-government, a task that is complicated by libertarianism’s official indifference to family formation, moral instruction, drug use, and other social factors essential to the development of citizens capable of flourishing in a libertarian regime.
Thus, libertarianism corrodes family, faith, and community through economic and social pressures. An uprooted, insecure workforce might suit the interests of Wall Street (at least in the short term), but it is poison to a culture that aims to produce people capable of self-government. Economic insecurity depresses family formation and stresses existing families. It destroys communities. The economic effects of libertarianism really are to leave people alone.
This makes them receptive to big government. The crucial insight of Robert Nisbet’s classic book “The Quest for Community” is that individualism and big government are allies in the destruction of intermediate forms of community and authority. ...
... In the end, the freedom to abandon family, faith, and community is the freedom to be insecure, insignificant, and alone before the Leviathan of government.