In a conversation with PBS' Ray Suárez, Supreme Court Justice Anthony Kennedy discussed the importance of rule of law in both the United States and abroad.
- Listen to the audio of Justice Kennedy’s discussion with PBS NewsHour’s Ray Suarez at the Washington Conference.
Kennedy outlined three conditions for rule of law to function. The law must be superior to the government; it must be just in order to guarantee citizens’ dignity and freedom; and must be accessible in order to honor expectations and for people to seek redress.
Suárez asked about Kennedy’s take on using a foreign statute in a Supreme Court opinion. Kennedy said it was an “unnecessary controversy” that arose during a case in which the Court debated whether a state could execute a person who was younger than 18 when the crime was committed. At the time, Kennedy cited the fact that only in China and Sudan can someone younger than 18 be executed. There was “outrage” over the fact that he cited foreign law. But Kennedy said an insight from another country could help define universal principles. “If a foreign country happens to see an injustice that we don’t, that perception…tells us more about who we are and what we aspire to be.”
Next, Kennedy discussed the importance of the Constitution. “Americans consider their Constitution their priceless resource,” he said. “It is the Constitution that defines us as Americans.” He pointed out that this document provides “expansive phrases” and does not always go into specifics. “The nature of injustice is something you can’t see in your own time,” he noted.
In terms of improving rule of law, legal systems must be strengthened, Kennedy noted. “A functioning legal system is part of the capital infrastructure,” he said. “You simply cannot have a dynamic, fair, progressive, strong, solid economic base unless you can enforce contracts and meet expectations.” For Americans, the law is a “promise,” he explained. It allows people to plan their own destiny and to provide a guarantee, whether it’s for a property, an investment, or an injury. Property is key, he noted. “I know of no system that has granted freedom to people without some right to own property. Property gives you capacity to claim your own destiny in a world where the government is all too ready to plan it for you.”
Suárez noted that laws don’t always work the way they should. Kennedy explained that laws creating bureaucracy can lead people to turn to informal means of doing things like getting a license for a business. But, he cautioned, disrespecting the law can lead to a loss of freedom.