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.”