Justice Kennedy Channels Calvin Coolidge

I was struck by a passage in Justice Kennedy's concurring opinion in NIFLA v Becerra, the Supreme Court decision of last week striking down California's attempt to mandate pro-abortion messages be provided by anti-abortion crisis pregnancy centers.  It made a point similar to that of President Coolidge in his 1926 speech on the 150th anniversary of the Declaration of Independence.  Though Kennedy refers to the Constitution and Coolidge to the Declaration both warn of the dangers of progressive thinking which ignores the founding principles of this country.

Justice Kennedy:

The California Legislature included in its official history the congratulatory statement that the Act was part of California's legacy of "forward thinking".  But it is not forward thinking to force individuals to "be an instrument for fostering public adherence to an ideological point of view they find unacceptable".

It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.  Government must not be allowed to force persons to express a message contrary to their deepest convictions.  Freedom of speech secured freedom of thought and belief.  This law imperils those liberties.

President Coolidge:

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.

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