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Driving around during work today, I heard a fascinating interview on NPR with Slate's Dalia Lithwick. SCOTUS Justice Anthony Kennedy just gave a barn burner of a speech at the Annual Meeting of the American Bar Association, and she was reporting on what he had to say. The topic was "the rule of law," and he was most definitely not holding back. An excerpt from Lithwick's piece:

But Kennedy—for all that he cannot seem to stop being Kennedy, even in Honolulu—arrives with a serious project. He is charging the assembled attorneys to do the job of selling to a doubting world "the essentiality of the rule of law." "Make no mistake," he warns, "there's a jury that's out. In half the world, the verdict is not yet in. The commitment to accept the Western idea of democracy has not yet been made, and they are waiting for you to make the case." Referring to terrorism and violence and totalitarianism, he says, "The tide has gone out, and we are on the beach."

It's a tall order to swallow with your aquamarine bikini-tini. But it's a quintessentially Kennedy point: "Our best security, our only security, is in the world of ideas, and I sense a slight foreboding." The world of ideas may be far from Honolulu. But the world of ideas is the only place Kennedy calls home. To that end, he assigns himself a seemingly impossible task: He wants to define "rule of law" so we can start to peddle the concept worldwide. It is not enough to sell the world on the U.S. Constitution, he says. That is merely a set of "negative commands." He is looking for a positive formulation for the rule of law.
And suddenly he begins to sound like a 4 a.m. UNICEF commercial, describing the number of hours of human labor required to get clean drinking water in Africa and the number of babies who die there each year from diarrhea. "This can be fixed," he says. "This is not rocket science." He tells of the numbers of men who must languish in prison in Bangladesh for a year because they can't pay the $3 fine that would keep them out of jail. (He says he offered $1,000 to keep the next year's worth of men out of jail, and one can't help but wonder if he'd likewise offer to personally pay for decent defense counsel for next year's crop of indigent capital defendants in America.) "Can the world embrace the rule of law under such conditions?"

He describes the American conception of law as a "liberating force, a covenant, a promise." And in spite of the lofty intellectualism and the big words, this speech captures my imagination and that of the assembled crowd for its two quintessential Kennedy traits. The first is the vast sprawl of his imaginative world. He travels the planet and reads widely and he attends lectures on water purification. Then he applies all that knowledge to his conception of the law. And whether you like that expansive scope, listening to him is still a tonic to the smallness and smug certainty that has characterized our political leadership in this country for the past six years. It offers a welcome break from the hermetically sealed constitutional worldview of some of his detractors. Kennedy is a legendary agonizer. But his comments here reveal the extent to which that agony is not an end in itself. His sense of justice and equality is a work in progress, informed by what he learns from people all over the planet who know more than he does. There's something reassuring in his sense that the world is a fluid place.

The speech sounds like it must have been amazing. So far, however, I haven't been able to find a proper transcript of his remarks. I'd love to really dig into this, but sadly as of right now I cannot. Instead, I'm going to have to content myself with commentary on commentary - namely, Andrew Sullivan's.

With the caveat that I'm only working off of excerpts of his remarks, I can't help but ask: What part of this is "conservative"? A "positive formulation of the rule of law" that looks beyond national constitutions and borders to our common humanity? An understanding of law that sees it as something more than a set of "negative commands," but instead looks for it to positively guarantee both the dignity and equality to all human beings? By what possible definition is that conservative?

I'm sorry Andrew, but I'm not buying that. And for the record, no amount of Oakeshott is going to convince me on this one. If that's conservative, what precisely would the definition of liberal be?