Kieran Healy at Crooked Timber is yet another left-liberal blogger
taking Justice Janice Rogers Brown to task for the
speech she gave in April 2000 to the University of Chicago law school Federalist Society chapter. Once again, my take is that Justice Brown offers up a lot of red meat for her audience of conservative/libertarian law students, but that nothing she says is so far out of the mainstream of American legal and political thought as to be disqualifying. Kieran's post quotes selections from Brown's speech followed by commentary. In my post below, I've excerpted the meat of his post and interspersed my own commentary. Justice Brown's comments are, appropriately, in
brown. Kieran's are in
red. Mine are in the usual attractive black.
[T]he speech is a heady and unstable mix of libertarian obiter dicta, Randian bromides, culture-war cliches and, um, Procol Harum lyrics. No, really.
As I've already conceded, Justice Brown served up a lot of red meat in this speech. But she was speaking to a chapter of the conservative/libertarian Federalist Society. Is it surprising that she cut loose a bit for that audience? In any event, it is hardly unusual for judges to serve up red meat -- written or spoken-- to an audience. The late US Supreme Justice William O. Douglas
once wrote: "We must realize that today’s Establishment is the new George III. Whether it will continue to adhere to his tactics, we do not know. If it does, the redress, honored in tradition, is also revolution." Yikes! Or Judge Harry Pregerson's
confirmation hearing testimony that he would follow his conscience rather than the law when the two conflicted? Or, for that matter, Pregerson's justly controversial
prediction that the 9th Circuit would reverse his ruling in the California recall case? ... Oh, you get the point.
Was it prudent for Justice Brown to use such colorful language? Perhaps not. Yet, as Justice Douglas also
once said: "Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us?"
In any event, would Brown's critics prefer that ambitious young conservative lawyers plan their careers around the prospect of being a stealth canidate and, therefore, keep their mouths shut until they get on the bench (at which point, with life tenure, they can really cut loose)?
The whole thing is held together by the unbreakable bonds of conservative martyrdom. Speaking a few months before conservatives might reasonably have been said to control of all three branches of government, Brown says,
There are so few true conservatives left in America that we probably should be included on the endangered species list … But they need not banish us to the gulag.
It all depends on how you define conservative, I suppose. The folks at places like
The Mises Blog probably think they're all alone in the world, and they're pretty much right (thank goodness). In the law school context, as I've
argued before, we are badly outnumbered. On balance, however, as Brian Anderson's now famous
column explained, "three huge changes in communications have injected conservative ideas right into the heart of [the media] debate." If your definition of conservative is broad enough to encompass the family values types, the fiscal conservatives, the South Park Republicans, and the Republic Party Reptiles, there are a whole bunch of us with pretty bid soapboxes.
Lucky for you, the liberals spared you … this time. And why?
We are not much of a threat, lacking even a coherent language in which to state our premise.
Sadly, Brown’s speech does on to confirm this claim. We are living, she claims, in a period of “cultural disintegration” where “words are ceasing to have any meaning” and “The question is: how do you feel.”Justice Brown's point, I tihnk, is that we live in an era of
Xtreme Politics in which civic discourse is badly frayed. Indeed, civic discourse basically has been replaced by the depraved morons of reality tv.
What is to blame for this? The unfettered rise of market capitalism, with all the superficiality and commodified meaninglessness it brings, maybe? No, silly, it’s the fault of “the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism,” in conjunction with human nature: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.
Granted, the United States still stands sixth in the world on the
Economic Freedom Index. On measures such as fiscal burden and government intervention, however, the US is not as close to the top (albeit still relatively free). Moreover, we live in an era in which even the conservative party has become the party of
big government conservatism. Contrary to the claims of GOP tax-cutters, the beast is not starving. To the contrary,
studies show that Leviathan is growing faster than ever.
In context, moreover, this passage of Justice Brown's speech really is just a rather colorful way of making the same claims advanced by
public choice economics. Public choice’s basic tenet is that well-defined, politically influential interest groups use their influence with lawmakers to obtain legal rules that benefit themselves at the expense of larger, more diffuse groups. In other words, legislative decisions are not driven by distributive justice, but by interest group pressures (such as those of big corporations, famrers, unions, and the AARP). After all, doesn't the left compalin about corporate welfare all the time? Corporate welfare is a symptom of big government.
Although human nature makes us rush toward the dead hand of government and enslave ourselves to socialism, we learn a few paragraphs later that it also is the main reason capitalism must triumph:
The founders viewed private property as “the guardian of every other right.” But, “by 1890 we find Alfred Marshall, the teacher of John Maynard Keynes making the astounding claim that the need for private property reaches no deeper than the qualities of human nature.” A hundred years later came Milton Friedman’s laconic reply: ” ‘I would say that goes pretty deep.’” As John McGinnis persuasively argues: “There is simply a mismatch between collectivism on any large and enduring scale and our evolved nature.
Up to this point, I think Kieran has been pretty fair about not taking Justice Brown out of context. Here, however, I think he does so. (Or, at least, misses her point.) Read in
context, Justice Brown is not claiming that capitalism will inevitably triumph over collectivism. Instead, she is making the different claim that collectivism is inconsistent with human nature. She does not, however, deny that collectivism can be forced down upon society. Indeed, I think her point is precisely that because collectivism is inconsistent with human nature it can only be established by force. Anyone who has read
Aleksandr Solzhenitsyn's The Gulag Archipelago or
Anne Applebaum's Gulag: A History would find it hard to dispute that point.
I like the idea that the absolute worst one can say about that crypto-socialist Alfred Marshall was that he was the teacher of that noted revolutionary communist, John Maynard Keynes.
Whatever.
On we steam:
Ayn Rand similarly attributes the collectivist impulse to what she calls the “tribal view of man.”
Oh god. Ayn Rand. Fourteen year olds of the world unite! The car keys shall be yours by sheer force of will! Objectivism requires it!Actually, I agree with him here. I can't stand Ayn Rand and Objectivism gives me a headache. But if an Ayn Rand acolyte can be
Chairman of the Federal Reserve, I don't see why a fan can't be a federal judge.
Democracy and capitalism seem to have triumphed.
Indeed they have, and surely nowhere more so than in the United States. This raises problems for the theses put forward above. What to do? Who to blame?But, appearances can be deceiving. … Marxism has been “shamed and ridiculed everywhere except American universities” but only after totalitarian systems “reached the limits of their wickedness.”
When in doubt, blame the professors. This does not address the fact that capitalism and democracy seem to have triumphed and we are living with the consequences, but Brown is getting to that. It turns out that capitalism did not triumph after all:
As noted above, I don't read Brown's speech as claiming that capitalism triumphed. As also noted above, one can make a plausible argument that we in an era of large government nanny statism. Or is
Walter Olson just wasting his time?
Of course … 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.
Far from being the most advanced form of market capitalist democracy, the United States is in fact a haven of something else. Could it be … Socialism?At this moment, it seems likely leviathan will continue to lumber along, picking up ballast and momentum, crushing everything in its path … The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.
It seems the actually-existing socialism of the U.S., in contrast to actually existing socialism everywhere else, has managed to produce not a world that’s drab at best and totalitarian at worst, but rather an end-times party of positively dionysian proportions. How did they manage it? If this is socialism the Russians are going to want it back. And what, in particular, is to blame for this? The answer is, of course, The New Deal. You might have thought it was a set of government policies that, along with the Second World War, helped save captialism from itself. In fact, it was the hellspawn of Robespierre and Lenin.[Ed.: In the interests of speeding things up, I've trimmed the section on the Elightenment.]
The point I think Justice Brown was trying to make here is that the nanny state is a poor substitute, at best, for the virtue inculcating power of faith and voluntary community. We may fear the faceless bureaucrat, but he does not inspire us to virtue. Conduct that rises above the lowest common moral denominator thus cannot be created by state action. But while the state cannot make its citizens virtuous, it can destroy the intermediary institutions that do inculcate virtue: “Communities can be destroyed from without; but they cannot be created from without; they must be built from within.”
Richard A. Epstein, Simple Rules for a Complex World 324 (1995).
Conservatives therefore argue that the rich set of mediating institutions famously praised by Tocqueville is caught, like the Romans at Cannae, between the nanny state on one side and judicial hijacking of the state’s monopoly on the use of coercive force to advance a hyper-legalistic cult of the autonomous individual on the other. We therefore reject both prongs of modern liberalism in favor of achieving communitarian goals through private ordering. Our pessimism about human nature thus does not lead us to statism, but to promoting intermediating institutions that raise up citizens who can regulate themselves from within according to a shared language of good and evil, to paraphrase George Weigel.
All this is bad enough. However:But there are even deeper movements afoot. … 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. … 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.
I once read an essay by science fiction writer Spider Robinson giving advice on speeckmaking: "always play them out with a song." That's all Justice Brown is doing here.
Oh my. So there you have it. A clear outline of why free-market capitalism is inevitable in the light of human nature yet has been displaced in the United States because of the collectivist impulse ingrained in human nature and the crypto-revolution of The New Dealers which created the socialist leviathan of the American state that now crushes everything with its dead hand while allowing people to do what they like, engaging in mindless decadence with no respect tradition, custom or the standards of truth and rationality, thanks in large part to the Aid to Families with Dependent Children program and its gruesome offspring TANF, those bastard children of Enlightenment, the Terror, October 1917 and The New Deal (again), but do not fear because there is yet a chance that we can be propelled in millenarian frenzy into a world where free markets rule an economy comprised of Objectivist agents who nevertheless are imbued with the Feudal virtues of respect for the moral authority of their betters, committed to traditional pre-Enlightenment values and immune to the social and cultural transformations that tend to be associated with capitalism. Then we shall be happy.
Res ipsa loquitur.