Justice Kennedy v.
Cicero, Jefferson, Hamilton and MLK
By Terence P. Jeffrey | July 3, 2018 | 10:02 PM
EDT
(Screen Capture)
History will remember
Justice Anthony Kennedy for advancing an illogical argument to deny a God-given
right.
That places him on the
opposite side of a fundamental question from the great Roman senator Cicero —
as well as from Thomas Jefferson, Alexander Hamilton and Rev. Martin Luther
King Jr.
In 1825, an 82-year-old
Jefferson wrote a letter putting the Declaration of Independence in context.
He wanted people to know:
There was nothing unique or new about the philosophy it embraced.
"Neither aiming at
originality of principle or sentiment, nor yet copied from any particular and
previous writing, it was intended to be an expression of the American
mind," Jefferson said.
"All its authority
rests then on the harmonizing sentiments of the day," he wrote,
"whether expressed in conversation, in letters, printed essays, or in the
elementary books of public right, as Aristotle, Cicero, Locke, Sidney,
&c."
Cicero was murdered in 43
B.C. What might he have said that enlightened the Declaration of 1776?
"There is a true
law, a right reason, conformable to nature, universal, unchangeable, eternal,
whose commands urge us to duty, and whose prohibitions restrain us from
evil," Cicero wrote in about 54 B.C.
"It is not one thing
at Rome and another at Athens; one thing today and another tomorrow; but in all
times and nations this universal law must forever reign, eternal and
imperishable," Cicero said. "God himself is its author, its promulgator,
its enforcer."
What did Hamilton think
of this argument?
"The sacred rights
of mankind are not to be rummaged for, among old parchments, or musty
records," Hamilton wrote in 1775. "They are written, as with a sun
beam, in the whole volume of human nature, by the hand of the divinity itself;
and can never be erased or obscured by mortal power."
That Jefferson, a
hypocritical owner of slaves, understood that the inalterable God-given natural
law prohibited slavery is demonstrated by some of the inscriptions now carved
into his memorial in Washington, D.C.
They include these
Jeffersonian words: "God who gave us life gave us liberty. Can the
liberties of a nation be secure when we have removed a conviction that these
liberties are the gift of God? Indeed, I tremble for my country when I reflect
that God is just, that His justice cannot sleep forever. Commerce between
master and slave is despotism. Nothing is more certainly written in the book of
fate than that these people are to be free."
In 1963, Rev. Martin Luther King Jr. was unjustly jailed in Birmingham
for protesting the immorality of segregation.
King, the president of
the Southern Christian Leadership Conference, rightly offered no repentance for
nonviolent resistance to unjust laws. In the true spirit of America, he
explained why that resistance was necessary.
"A just law is a
man-made code that squares with the moral law or the law of God," King
wrote in his Letter from Birmingham Jail.
Speaking of those who
engaged in nonviolent resistance against segregation, King declared: "One
day the South will know that when these disinherited children of God sat down
at lunch counters they were in reality standing up for the best in the American
dream and the most sacred values in our Judeo-Christian heritage, and thusly,
carrying our whole nation back to those great wells of democracy which were dug
deep by the founding fathers in the formulation of the Constitution and the
Declaration of Independence."
In 1992, Justice Kennedy
joined with Justices Sandra Day O'Connor and David Souter in writing the
Supreme Court's opinion in Planned Parenthood v. Casey.
Kennedy defended what he
called "the right of the woman to choose to have an abortion before
viability and to obtain it without undue interference from the state."
He argued that this "right" was protected by the Due Process
Clause of the Fourteenth Amendment.
"It declares,"
Kennedy said, "that no state shall 'deprive any person of life, liberty,
or property, without due process of law.' The controlling word in the cases
before us is 'liberty.'"
If the right to kill an
unborn child, as Kennedy argued, is protected by the "liberty"
recognized in the Fourteenth Amendment, what is the ultimate source of that
"liberty"?
Is, as Cicero said,
"God himself ... its author"? Are men, as Jefferson wrote,
"endowed by their Creator" with it? Is it, as Hamilton declared,
written "by the hand of the divinity itself"? Does it, as King would
ask, square "with the moral law or the law of God"?
No.
In Kennedy's opinion, the
"rights" that constitute "liberty" are something each
person — or Supreme Court justice — can make up for themselves.
"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," Kennedy wrote.
"Beliefs about these matters could not define the attributes of personhood
were they formed under compulsion of the State."
However, though Kennedy
gave to each person the authority to determine what "liberty" is, he
nonetheless limited a women's liberty to kill her unborn child to only that
time which precedes the child's "viability."
Viability, of course, is
a mutable thing — subject to advances in machinery and drugs.
But then, in Justice
Kennedy's world, all rights are mutable — subject to whomever holds five votes
on the Supreme Court.
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