Justice Kennedy’s “Notorious Mystery Passage”

Clifford R. Goldstein July/August 1997

Though U.S. Supreme Court briefs are rarely noted for prosody or style (who confuses Macbeth with McCollum or Lycidas with Lemon?), occasionally a phrase or section achieves popular renown. The most recent example is U.S. Supreme Court Justice Anthony Kennedy's immortalized words in Casey: "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."

Though sounding more like a discourse on Spinozean metaphysics than on constitutional jurisprudence, this sentence has reached the level of notoriety among judicial and political conservatives that "separate but equal" once did among civil libertarians, or "material substratum" did among post-Enlightenment idealists.

No U.S. Supreme Court dictum in decades has faced such vilification as has poor Justice Kennedy's 28 words. Robert Bork called the phrase indicative of "New Age jurisprudence"; William Bennett derided it as an "open-ended validation of subjectivism" that paves the way for drug abuse, assisted suicide, prostitution, and "virtually anything else": George Will said it was "gaseously" written; Michael Uhlman labeled it a "thing of almost infinite plasticity"; the editors of First Things called it the "notorious mystery passage"; and on and on.

Yet it's ironic that mostly political conservatives attack it, because at the heart of Justice Kennedy's at-the-heart statement is the essential message of political conservatism, and that is personal liberty.

On the surface all this metaphysical "universe," "meaning," and "existence" stuff does sound like something uttered from a channeler or from Shirley McClaine (Judge Robert Beezer of the U.S. Court of Appeals said that the phrase can - especially out of context - sound "so broad and melodramatic as to seem almost comical in its rhetorical flourish"), but what Kennedy says does, in fact, encapsulate basic Jeffersonian conservatism, and had Kennedy written the sentence in dissent to Casey's affirmation of abortion "rights" (which is at the heart of the rancor over the dictum), this same quote would have been seen as sweeping summary of classical conservatism.

Putting aside the actual Casey decision itself (which is problematic enough) - it's hard to see how in principle (as opposed to the application) any freedom-loving American, especially a classical small-government-lower-taxes-gun-owning-strong-military conservative could reject Kennedy's basic message.

"Our law affords," the justice began the paragraph containing the infamous phrase, "constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." For a nation that prides itself on freedom, what else could the justice have said? "Our cases recognize 'the right of the individual, married or single, to be free from unwarranted intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.' Our precedents 'have respected the private realm of family life which the state cannot enter.'" Again, what better summarizes the essence of classical conservatism? "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." Next comes the "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." And he ends the paragraph with this: "Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the state."

Whether the "right" to an abortion appropriately expresses this philosophy is surely an open question. But so often what's attacked is the phrase itself, as if those words somehow were blatantly hostile to sacred constitutional principles. Yet despite their somewhat otherworldly tone, they clearly reflect the essence of what a government designed to protect the religious rights - indeed, all the rights - of its citizens should be about.

In fact, "one's own concept of existence, of meaning, of the universe, and of the mystery of human life" depicts, essentially, religious ideals. After all, what is religion if not an attempt to explain existence, the universe, and human life? Had Kennedy used more Judeo-Christian phraseology, like "one's own concept of Deity, of Creation, of man's relationship to God," he would have been saying the same thing while no doubt sparing himself the ridicule that the phrase itself, especially taken out of context, has engendered. On the other hand, perhaps Kennedy purposely used desacralized language in order to avoid the problems caused by such statements as Justice Douglas's oft-cited line in McCollum: "We are a religious people whose institutions presuppose a Supreme Being" (a phrase that Douglas supposedly was later sorry he made).

Whatever his motives, Kennedy's "notorious mystery passage" is neither notorious nor a mystery; it is, instead, a politically correct expression of the best principles of a people who considered rights of conscience so fundamental to how they wanted to live that they framed a Constitution to protect those rights. The mystery, instead, is why those who profess to believe in those same rights should find the passage so notorious.

Interestingly enough, Kennedy's words aren't even original. Rather they reflect the dictum of a Supreme Court majority opinion written almost 50 years earlier, in which Justice Felix Frankfurter included his own "mystery" passage: "Certainly the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law." The case?

Minersville v. Gobitis (1940).

Clifford R. Goldstein

Article Author: Clifford R. Goldstein

Clifford Goldstein writes from Ooltewah, Tennessee. A previous editor of Liberty, he now edits Bible study lessons for the Seventh-day Adventist Church.