The Constitutional Jurisprudence of Justice Kennedy on Speech

Abstract

In this article, we describe how the concept of constitutionally protected liberty has been developed and applied in Justice Kennedy’s opinions. As we discuss, Justice Kennedy’s vision of liberty embodied in the Constitution seems to derive from an understanding of 18th-century Enlightenment philosophy, based on writers such as John Locke and Adam Smith, as developed in the 19th century by writers such as John Stuart Mill. In pursuit of this understanding, Part II of this article discusses the Enlightenment concept of liberty. Part III then shows how that doctrine is reflected in the reasoning of opinions written by Justice Kennedy, with specific reference to cases involving freedom of speech, individual autonomy, individual liberty versus government liberty, and international views on liberty. Part IV addresses other aspects of a natural law theory of interpretation – text, context, history, legislative and executive practice, precedent, and prudential considerations – that limit full elaboration of this concept of liberty in specific cases. Part V provides a brief conclusion.