The blogosphere is getting very distracted by the Lochner tangent to the Janice Brown confirmation battle. Eric Muller injects some sense into that debate.
But forget about Lochner for a minute. The technical merits and demerits of that decision are the wrong debate. Read the whole speech in which the Lochner passage is only a small part. Jon Roland has HTMLized it: “A Whiter Shade of Pale”: Sense and Nonsense—The Pursuit of Perfection in Law and Politics, delivered to the The Federalist Society at University of Chicago Law School (April 20, 2000).
You should read the whole thing to get its true flavor. Justice Brown believed that the United States in 2000 was on the brink of collectivism, in the grips of a slave mentality in which the unthinking (led by Marxist academicians, of course) are just itching to surrender their liberty for the opiate of socialism exemplified by the New Deal—the great error in our history. And, oh yes, the family is being destroyed by bureaucrats, or by feminine reliance on the state [please note that Justice Brown clearly doesn't just mean AFDC, where there might be something to the claim…she means a substantial proportion of the women who voted for Clinton].
But fear not, “it is too soon to despair. … We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.” That would be a new ultra-libertarian, anti-collectivist (defined as “regulation”) dawn, apparently. Which is of course why some folks fixated on the Lochner point.
There does come a point where, however smart they may be, a person is so far outside of the mainstream that they really shouldn't be a federal judge. This speech persuaded me that Justice Brown is out there, well past that point. And this despite the cool Procol Harum references.
Here are some quotes (minus footnotes)
There are so few true conservatives left in America that we probably should be included on the endangered species list.
Writing 50 years ago, F.A. Hayek warned us that a centrally planned economy is “The Road to Serfdom.” He was right, of course; but the intervening years have shown us that there are many other roads to serfdom. In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.
It is my thesis today that the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism — has changed not only the meaning of our words, but the meaning of the Constitution, and the character of our people.
Ayn Rand similarly attributes the collectivist impulse to what she calls the “tribal view of man.” She notes, “[t]he American philosophy of the Rights of Man was never fully grasped by European intellectuals. Europe's predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as the slave of the absolute state as embodied by 'the people' — i.e., switching from slavery to a tribal chieftain into slavery to the tribe.”
Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism's virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental and profound flaw. We conclude instead that its ends are worthy of any sacrifice — including our freedom. Revel notes that Marxism has been “shamed and ridiculed everywhere except American universities” but only after totalitarian systems “reached the limits of their wickedness.”
“Socialism concentrated all the wealth in the hands of an oligarchy in the name of social justice, reduced peoples to misery in the name of shar[ed] resources, to ignorance in the name of science. It created the modern world's most inegalitarian societies in the name of equality, the most vast network of concentration camps ever built [for] the defense of liberty.”
Revel warns: “The totalitarian mind can reappear in some new and unexpected and seemingly innocuous and indeed virtuous form. [¶]… [I]t … will [probably] put itself forward under the cover of a generous doctrine, humanitarian, inspired by a concern for giving the disadvantaged their fair share, against corruption, and pollution, and 'exclusion.'”
Of course, given the vision of the American Revolution just outlined, you might think none of that can happen here. I have news for you. It already has. The revolution is over. What started in the 1920's; became manifest in 1937; was consolidated in the 1960's; is now either building to a crescendo or getting ready to end with a whimper.
Lionel Tiger, in a provocative new book called The Decline of Males, posits a brilliant and disturbing new paradigm. He notes we used to think of a family as a man, a woman, and a child. Now, a remarkable new family pattern has emerged which he labels “bureaugamy.” A new trinity: a woman, a child, and a bureaucrat.” Professor Tiger contends that most, if not all, of the gender gap that elected Bill Clinton to a second term in 1996 is explained by this phenomenon. According to Tiger, women moved in overwhelming numbers to the Democratic party as the party most likely to implement policies and programs which will support these new reproductive strategies.
We find ourselves … in a situation that is hopeless but not yet desperate. The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant. Familiar arrangements are coming apart; valuable things are torn from our hands, snatched away by the decompression of our fragile ark of culture. But, it is too soon to despair. The collapse of the old system may be the crucible of a new vision. We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.
You can also read her tamer — by comparison — Commencement Address to the Columbus School of Law at Catholic University, Keepers of the Faith; Defenders of the Light (May 24, 2003).
The question for you will be whether the regime of freedom which they founded can survive the relentless enmity of the slave mentality.
The American Creed has not been forgotten; it has been repudiated. “Historically, American identity has had two primary components: culture and creed.” The former is defined by our heritage from Western Civilization; the latter consists of a set of universal ideas and principles articulated in our founding documents: liberty, equality, democracy, constitutionalism, limited government, and private property. On these principles there once was wide agreement. Indeed, the Creed was hailed by foreign observers, ranging from Alexis de Tocqueville to Gunnar Myrdal, as the “cement in the structure of this great and disparate nation.” As Richard Hofstader notes: “It has been our fate as a nation not to have ideologies but to be one.”
Feh. That’s about my reaction. The left treats communism, which killed between a hundred and two hundred MILLION in the last century, as a endearing excentricity, a cause which regrettably failed because real people just weren’t good enough for it. And socialism, which is just the pure poison dilluted to a concentration that doesn’t immediately kill, as some kind of ideal. But let someone be even a fraction as far to the right, and they’re an “extremist”. Out of the “mainstream”. All that “tolerance” goes up in smoke.
The left’s dream of diversity is a rainbow of faces, with monoclonally identical beliefs.
Brown sounds like an intelligent woman. Her comments certainly don’t appear extreme. How to pay for the benefits voters desire will become a very devisive issue in the future. The percentage of people paying taxes continues to decline (now 5% of the tax payers pay 95% of the taxes–soak the rich) while those receiving, wanting, and those who feel it is their “right’ to benefit from government programs vote themselves more and more.
Very useful, thanks. I agreed with many of the critics that a Lochner position alone is not all that damning. Combined with your discussion, though, it looks like she is a bit more unorthodox than her defenders suggest.
How is any of this outside the mainstream? It sounds dead nuts on to me.
What is this “mainstream” I keep hearing about? Stephen Reinhardt? Harry Pregerson? Most of the people who I hear prattelling on about all these “outside the mainstream” nominees seem unlikely to be in it. Senator Schumer? Cut me a break. He’s barely in the NY City mainstream. In Georgia, he’s looney left.
Now, if you REALLY mean “outside the BLACK mainstream” which are the code words I hear, why not just come out and say it?
I’m writing up a fuller response to some of the comments, and to Prof. Bainbridge, but Tuesday is my busy day of the week, so I have lots of class prep tonight. And tomorrow I have lots of appointments too. So it may take longer than usual.
I most certainly do NOT mean the “black mainstream” — whatever that is. I mean the US mainstream — a broad spectrum that I would say runs from, say, Goldwater-Reagan conservatives to Tsongas-Wellstone progressives. I believe it excludes the Socialist Workers Party and Paleoconservatives, Black Helicopter counters, and Theocrats (by which I mean those who wish to make a particular religion a formal part of government as opposed to the very mainstream and appropriate view that leaders should inform their decisions by their moral and/or religious principles).
It sounds like she presented some intelligent and thought provoking opinions. What’s the problem?
From a civil liberties POV it’s just appalling to deprive someone of a job based on her speech rather than her job performance.
I don’t agree with all of Justice Brown’s speech, but so what? She has been a California Supreme Court Justice for several years. She has done well as a Justice, since she has written more majority decisions than any other Justice during her period on the California Supreme Court.
This is an interesting question.
At what point does someone’s opinions become considered irreconcilable with ability to do a job?
There’s a terribly slippery slope there. If a doctor has a very strong opinion either pro- or anti-choice, or pro- or anti- medical marijuana, or euthanasia, how strong must that opinion be before that doctor is considered unfit to do a professional job of treating patients?
OK, and Justice Brown is what? A Black-helicopter counter? A Buchananite? A Christian zealot? Or simply displaying a high degree of scepticism regarding the utility, and in some cases, ethics, of government intervention?
If she belongs to any category, I’d put her in the limited government libertarian category, stronger on property and private contract rights than many, not greatly enamoured of the Christian right, and death on rent-seeking. Rather centrist on abortion — being for parental notification does not quite equate one with Phyllis Shaffley. That Brown is unwilling to uncritically accept economic intervention by governments, or ignore their coercive excesses, seems well within the right-hand node of the increasingly bimodal US mainstream.
Why the desperate eagerness to write paleoconservatives out of the American debate?
Gonna have to rewrite a whole lot of American history, there. To an almost revolutionary degree, in fact.
Which raises the question who’s “mainstream” here.
Read Chronicles magazine and Buchanan’s fine books and columns, and don’t believe the hype.
Justice Brown is not a paleoconservative, but she is still highly impressive.
Fascinating, frightening article. There really are nuts who want to turn back the clock on all progress since the New Deal. I suppose these paleoconservatives won’t be happy until we revert to the Industrial Revolution, with the fat cat CEOs having this new “freedom” to avoid all wage and hour laws, paying pennies on the dollar to those who actually produce the goods. I wouldn’t want to interfere with the CEO’s “freedom” to hoard several more millions!! Poor, poor CEOs…
What’s most frightening are the responses, dittoheads who mindlessly parrot these “liberal conspiracy” theories. Perhaps the writer of the article would do better with his flock of sheep if he didn’t question the dogma of the right, and became more of a bloated drug-addicted reactionary like Rush.
Hear, hear! This lady rocks. No surprise to find the anti-libertarian left hating her. What *is* surprising though is finding the anti-libertarian *right* *supporting* her.
She should be anything but a judge. Why would you quote Ayn Rand if you’re a Christian? Rand is the most wacked up anti-Christian I’ve ever read something by. Just to quote her casts Justice Brown’s entire SANITY and MORALITY into question. Ayn Rand stands opposed to the merciful loving Christ who is the very opposite of “INDVIDUALISTS”. Justice Brown should feel free to develop her ideas and think and speak out, but not in the context of interpreting already existing laws. Pick one, your Honor
a) being a wise Judge and a real Christian
b) being an outspoken Individualist
ITS AMERICA!!! You can make that choice!
I was unaware that my voting patterns were part of my “reproductive strategy.” I can see it now: “Honey, I voted and we’re having twins!” I would be the most surprised. See, all this time I thought my husband was involved in the matter. Silly me.
Has that worked for her? Just calling the state? Should we tell the fertility clinics?
That woman has a genuinely bizarre sense of liberal women.
Women vote for their pocketbooks, for more cops, for better schools. Men sometimes vote for their pocketbooks. Mostly men have voted overwhelmingly for more debt, and for less investment in infrastructure via the policies of Bush and Reagan.
The global observation that women are more conservative in the traditional fiscal sense of the word is what has made female-centered micro-credit strategies so successful. The proven value in educating women is because of a greater glabl tendency to invest rather than spend. Perhaps these statistical observations apply in the developed world as well — women are more concerned with investment than consumption. That would explain the defeat of the deficit spenders at the hands of women.
Or maybe its our uteruses (uteri?). But I think maybe Brown should be looking upwards a bit – at women’s brains. The fact that she stretches to find a biological explantion frankly makes we question her reason.