Justice Anthony Kennedy didn’t invent the shift from community to autonomy, but in 1992 he articulated it more crisply than anyone else: “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.”
… You’d think [this “mystery of life” passage] would lead to a very small state that would leave a lot of freedom for people. In fact, it leads to a big, intrusive state. If you strip away all the communal commitments that help people govern themselves from within, then very soon you find you have to pass all sorts of laws to govern them from without. If you privatize meaning so that people get to follow their unrestrained desires, they immediately start tramping on one another, and public pressure grows for restrictive laws, like hate speech regulation, to keep things from getting out of control.
Any society has to perform at least two big related tasks — raising the young and pursuing of the good. It takes a village to do both these things. As Yuval Levin reminded us in an essay in First Things a few years ago, people are only capable of exercising responsible freedom when they are embedded in and formed by social institutions — like family, schools that take morality seriously and a shared civic order. It’s not a do-it-yourself job.
The autonomy ethos forgets this. Justice Kennedy channeled it in its purest form.
David Brooks Much more could be said, and some already has been said, about Justice Kennedy’s wooly-headed “swing vote” jurisprudence in some areas of law, but the “mystery passage” is likely the wooliest.