CHAMBERS OF JUSTICE ANTHONY M. KENNEDY

Supreme Court of the United States
Washington, D. C. 20543

The Honorable Randy J. Holland
Supreme Court of Delaware
P.O. Box 369
Georgetown, Delaware 19947

Re: Dialogue on Freedom

March 19, 2002

Dear Justice Holland:

Thank you for your important and most welcome letter of March 15, indicating that both the Delaware State Bar and the American Inns of Court are interested in participating in the Dialogue on Freedom. I called Bob Stein of the American Bar Association today to tell him this excellent news. He will contact you very soon.

The Dialogue on Freedom is open to refinements and improvements, but for now it has a rather simple outline. The plan is for judges, law professors, and attorneys to visit high school students on Law Day. A skilled and experienced instructor can conduct the class by him or herself, but my recommendation is that a team of two or three members of the Bench and Bar visit each high school class. To give the dialogues a common theme, we have prepared a case study, which should be given to students a few days in advance of the class. The hypothetical asks the students to engage in a series of conversations in the nation of Quest. Parts I through III of the hypothetical set forth the basic framework for the dialogue. My own experience has been that Part I alone can sustain an hour and a half of excellent discussion. Parts II and III may lead to a discussion of sensitive issues concerning how other countries view American foreign policy and whether our policies are sufficient to answer those concerns. Even though broader issues of our mission and purpose in global affairs, rather than specific policies, should be the emphasis of the Dialogue on Freedom, this line of discussion can prove most constructive. As a member of the Third Branch of the national government, I must be somewhat cautious in this particular area; but other participants and members of the Bar likely will not be so constrained.

To illustrate the ancient foundations and origins of our culture, Parts IV and V ask students to prepare a timeline with significant events in the heritage of freedom. Students then share the names of three books and three movies that they could leave behind with their new acquaintances in Quest. At the end of the session, the instructors should request that the class as a whole compile a list of 15 books and 15 movies, and refine and expand the timeline so that it shows the 15 most significant historical events in the history of freedom. This would be a collegial exercise. The students should submit their list to the ABA within a week or so, say by May 8. The ABA would announce around May 15 the 15 most popular choices in each category and identify the high schools that came closest to submitting the most popular list. The ABA’s announcement would give something of a conclusion to the initial phase of the dialogue.

The Dialogue on Freedom is not intended to be a series of debates on contemporary issues concerning, for instance, military tribunals or the merits of televising courtroom proceedings. Those discussions are important, indeed necessary, for an informed citizenry; but debates on specific issues should not be the whole content of our public discourse. The events of last September 11 underscore the necessity to reflect upon some of the basic values and principles that underlie our heritage of freedom. The Dialogue on Freedom provides us with a chance to restate those first principles on which our country was founded.

The reason for enlisting the legal profession in the initiative should be evident. The profession has always demanded that lawyers dedicate their talents towards the public good. Judges, law professors, and attorneys who are skilled advocates and well-versed in the history and evolution of free institutions would be ideal participants. Now lawyers must use their skills of advocacy to inspire Americans, especially young Americans, to examine first principles. There is also important, symbolic significance in having members of the Bench and Bar go to the high schools. Their efforts will demonstrate both an outreach by our profession and a commitment that the discussions will not be one-sided or dominated by some government point of view. When the legal profession commits its resources and energies to help the Nation set a proper course, we act according to our own best traditions and reaffirm that our first mission is to safeguard first principles.

There can be additional aspects to the Dialogue on Freedom. One would be to create a film containing some of the most interesting dialogues from different classes. We already have films of five classes. Whether a master film should be distributed before May 1, or whether production should be delayed so that it may contain more segments from the Law Day discussions, is a question that a steering committee should resolve. If the film were of sufficient quality, it might be translated into other languages. These suggestions are yet to be explored and resolved. Other possibilities including posting outstanding student contributions on the Dialogue on Freedom web site at http://www.DialogueonFreedom.org. If any of these suggestions seem too complicated, the program is still self-sufficient in its present form.

In anticipation of the Law Day events, it would be helpful to have a master list of discussion participants and high schools to ensure the high quality of the visits and to make it possible to coordinate the results of the sessions. This may be an area in which the American Inns of Court could be especially helpful.

Bob Stein soon will have in place a steering committee, consisting of judges, law professors, and attorneys, who can give further coordination and direction to the Dialogue on Freedom. Some who are interested are United States Circuit Judge Myron Bright; Professor Clark Kelso, who taught one of the classes with me; and one or more state bar presidents. Professor Arthur Miller can be contacted for his comments. I had the privilege of conducting a class with him in New York, and he is most supportive. I need to take a secondary role, and remaining decisions about the Dialogue should be made by the steering committee. Of course, I would be pleased to comment. One of my law clerks, Alex Willscher, has been working on this project. He will be pleased to help me answer further questions.

The participation of the American Inns of Court will be of great importance, and we are most appreciative of your interest. With repeated thanks for your communication and your strong support, I remain

Yours truly,
Anthony Kennedy

Enclosure
CC:
Honorable Myron Bright Mr. Robert E. Hirshon
Prof. Clark Kelso
Prof. Arthur Miller
Ms. Mary Ann Peter
Mr. Don Stumbaugh

ENCLOSURE TEXT

DIALOGUE ON FREEDOM

The Nation of Quest (an imaginary place) is a poor country. Many of the people are not employed, and those who do have jobs often earn $2 a day or less. Quest has a written constitution, but its promises are not carried out in practice. The country has elections which are not really competitive and are often corrupt. The leadership consists of an old guard, which rules with the half-hearted support of the military. Corruption is pervasive throughout government and the economy.

Drummer, a man in his early 30’s, lives in Quest. He is a charismatic speaker and preaches hatred of the United States and the necessity to destroy American power and influence. There is a religious component to Drummer’s doctrine, and he proclaims that the United States is evil. The government often arrests its opponents, but it is reluctant to detain Drummer or be too hard on him because of his popularity, particularly among the poor.

You start out on a trip to a popular tourist destination, but your plane has engine trouble. You make an unscheduled landing in Quest and find that you must remain there for three days while the repairs are completed. During the time you stay in Quest, you have the following encounters.

I
You meet a young woman named W. W tells you that what is wrong with Quest and many other less-developed countries is the influence of American culture. She says American culture is decadent, that it has led to the corruption of life in the West, and that it ought not to spread to Quest. W thinks Quest should follow some sort of movement which resists American culture.
What do you tell her?

II
W tells you that she admires Drummer’s teachings. W says the people should install someone like Drummer as the leader of the government and give him close to absolute authority. She knows Drummer wants a society controlled by men and that she would have a subordinate role, but she thinks women should accept that position until things improve. She tells you Drummer and his followers can be trusted to bring about a better living and a better society for all the citizens of Quest and that, at least for now, democracy is not worth pursuing.
What do you tell her?

III
You take a ride around the major city with some friends and end up in an industrial area. There you meet M, a young man of 14 or 15 years of age. He stands in the bottom of a pit, using a sledgehammer to pound scrap iron into thinner sheets for transport. It is hard, laborious work, for which he is paid just $10 a week. M needs the money to help support his family. He has few prospects for a different or better job. For all M knows, he might spend most of his life doing this kind of work at a low wage. His work day ends, and you introduce yourself. The subject of the terror attacks in New York and Washington comes up. He remarks “Why should I care what happens in New York or Washington?”
What is your answer?

IV.
If you could leave three books and three movies with W and M that best capture what America means to you, what would they be?

V.
If you were making a timeline called “Great Events in Freedom,” what events would you include? How far back would your timeline go?