A dialogue on liberty: The classical liberal and civic educational principles of Justice Kennedy's vision of judicial power

The jurisprudence of Justice Anthony M. Kennedy, appointed to the U.S. Supreme Court in 1988, has proven difficult to categorize. He has been susceptible to criticisms that there is no consistency in his opinions, perhaps because his conservative stance is too easily influenced by the opinion pages of the New York Times, and by elite opinion. I argue that Kennedy does have a consistent jurisprudence, and that it is defined by his dialogical vision of judicial power. Kennedy believes that each generation must engage in its own dialogue about the Constitution's meaning because it reads the document in light of its own experiences. This responsibility, to think for oneself about the fundamental principles of liberty, can only be properly exercised if people understand the need to keep the dialogue within the original, classical liberal meaning of the Framers' words. It is through his Supreme Court opinions that Kennedy uses the Court's power to set the constitutional parameters for these debates among the citizenry.; While this judicial vision is unique to Justice Kennedy, it taps into a rich vein of American political thought that emphasizes fidelity to classical liberal principles. I conclude that Kennedy's use of the Court's power does not pose a 'countermajoritarian' problem. This is because his dialogue is faithful to the country's founding constitutional principles and, while initiated by the Supreme Court, is a dialogue which society should continue---in order to "secure the Blessings of Liberty."; My findings are drawn from detailed analysis of Kennedy's opinions in cases involving freedom of speech, the Fourteenth Amendment's due process protection of individual liberty, the Fifth Amendment's Takings Clause, and criminal sentencing guidelines. This analysis is complemented by material from Kennedy's confirmation testimony and extra judicial writings, the papers of Justices Marshall, Brennan and Blackmun, all the briefs filed in the forty-three cases examined, and information about the "Dialogue on Freedom," a joint civic education venture between Kennedy and the American Bar Association, which is the extra-judicial manifestation of the 'dialogue on liberty.'...