Word
Gems
What is a
man but the sum of his thoughts?
Government
& Democracy:
Judge
Janice Rogers Brown
"A
Whiter Shade of Pale": Sense and Nonsense —
The
Pursuit of Perfection in Law and Politics
Speech
of Janice
Rogers Brown,
Associate
Justice, California Supreme
Court
The
Federalist Society
University
of Chicago Law School
April
20, 2000, Thursday
12:15
p.m.
(excerpts)
… Writing 50 years ago, F.A.
Hayek warned us that a centrally planned economy is "The Road to Serfdom."3 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….
"The Framers understood that the
self-interest which in the private sphere contributes to welfare of society — both in
the sense of material well-being and in the social unity engendered by commerce —
makes man a knave in the public sphere, the sphere of politics and group action. It is
self-interest that leads individuals to form factions to try to expropriate the wealth of
others through government and that constantly threatens social harmony."8
Collectivism sought to answer a different question: how to
achieve cosmic justice — sometimes referred to as social justice — a world of
social and economic equality. Such an ambitious proposal sees no limit to man's capacity
to reason. It presupposes a community can consciously design not only improved political,
economic, and social systems but new and improved human beings as well.
The great innovation of this millennium was equality before the
law. The greatest fiasco — the attempt to guarantee equal outcomes for all people.
Tom Bethell notes that the security of property — a security our Constitution sought
to ensure — had to be devalued in order for collectivism to come of age. The founders
viewed private property as "the guardian of every other right."9
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."10 A hundred years later came Milton Friedman's laconic
reply: " 'I would say that goes pretty deep.'"11
In between, came the reign of socialism. "Starting with the formation of the
Fabian Society and ending with the fall of the Berlin Wall, its ambitious project was the
reformation of human nature. Intellectuals visualized a planned life without private
property, mediated by the New Man."12 He never
arrived. As John McGinnis persuasively argues: "There is simply a mismatch between
collectivism on any large and enduring scale and our evolved nature. As Edward O. Wilson,
the world's foremost expert on ants, remarked about Marxism, 'Wonderful theory. Wrong
species.'"13
Ayn Rand similarly attributes the collectivist impulse to what
she calls the "tribal view of man."14 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."15
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."16
"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."17
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.'"18
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. At this moment, it seems likely
leviathan will continue to lumber along, picking up ballast and momentum, crushing
everything in its path. Some things are apparent. Where government moves in, community
retreats, civil society disintegrates, and our ability to control our own destiny
atrophies.
The result is: families under siege; war in
the streets; unapologetic expropriation of property; the precipitous decline of the rule
of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The
result is a debased, debauched culture which finds moral depravity entertaining and virtue
contemptible.
But what if anything does this have to do with law? Quite a lot,
I think. In America, the national conversation will probably always include rhetoric
about the rule of law. I have argued that collectivism was (and is) fundamentally
incompatible with the vision that undergirded this country's founding. The New Deal, however, inoculated the federal Constitution with a kind of
underground collectivist mentality. The Constitution itself was transmuted into a
significantly different document. In his famous, all too famous, dissent in
Lochner, Justice Holmes wrote that the "constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic relation of the citizen
to the State or of laissez faire."19 Yes,
one of the greatest(certainly one of the most quotable) jurists this nation has ever
produced; but in this case, he was simply wrong. That Lochner dissent has troubled me
— has annoyed me — for a long time and finally I understand why. It's because
the framers did draft the Constitution with a surrounding sense of a particular polity in
mind, one based on a definite conception of humanity. In fact as Professor Richard Epstein
has said, Holmes's contention is "not true of our [ ] [Constitution], which was
organized upon very explicit principles of political theory."20 It could be characterized as a plan for humanity
"after the fall."
There is nothing new, of course, in the idea that the framers did not buy into the notion of human perfectibility. And the
document they drafted and the nation adopted in 1789 is shot through with provisions that
can only be understood against the supposition that humanity's capacity for evil and
tyranny is quite as real and quite as great as its capacity for reason and altruism.
Indeed, as noted earlier, in politics, the framers may have envisioned the former tendency
as the stronger, especially in the wake of the country's experience under the Articles of
Confederation. The fear of "factions," of an "encroaching tyranny";
the need for ambition to counter ambition"; all of these concerns identified in the
Federalist Papers have stratagems designed to defend against them in the Constitution
itself. We needed them, the framers were convinced, because "angels do not
govern"; men do.
It was a quite opposite notion of humanity, of its fundamental
nature and capacities, that animated the great concurrent event in the West in 1789 —
the revolution in France. Out of that revolutionary holocaust — intellectually an
improbable melding of Rousseau with Descartes — the powerful notion of abstract human
rights was born. At the risk of being skewered by historians of ideas, I want to suggest
that the belief in and the impulse toward human perfection, at least in the political life
of a nation, is an idea whose arc can be traced from the Enlightenment, through the
Terror, to Marx and Engels, to the Revolutions of 1917 and 1937. The latter date marks the
triumph of our own socialist revolution. All of these events were manifestations of a
particularly skewed view of human nature and the nature of human reason. To the extent the
Enlightenment sought to substitute the paradigm of reason for faith, custom or tradition,
it failed to provide rational explanation of the significance of human life. It thus led,
in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight
from truth — what Revel describes as "an almost pathological indifference to the
truth."21
There were obviously urgent economic and social reasons driving
not only the political culture but the constitutional culture in the mid-1930's —
though it was actually the mistakes of governments (closed borders, high tariffs, and
other protectionist measures) that transformed a "momentary breakdown into an
international cataclysm."22 The climate of opinion
favoring collectivist social and political solutions had a worldwide dimension.
Politically, the belief in human perfectibility is another way of
asserting that differences between the few and the many can, over time, be erased. That
creed is a critical philosophical proposition underlying the New Deal. What is
extraordinary is the way that thesis infiltrated and effected American constitutionalism
over the next three-quarters of a century. Its effect was not simply to repudiate, both philosophically and in legal doctrine, the framers'
conception of humanity, but to cut away the very ground on which the Constitution
rests. Because the only way to come to terms with an enduring
Constitution is to believe that the human condition is itself enduring.
For complex reasons, attempts to impose a collectivist political
solution in the United States failed. But, the political failure was of little practical
concern, in a way that is oddly unappreciated, that same impulse succeeded within the
judiciary, especially in the federal high court. The idea of abstract rights, government
entitlements as the most significant form of property, is well suited to conditions of
economic distress and the emergence of a propertyless class. But the economic convulsions
of the late 1920's and early 1930's passed away; the doctrinal underpinnings of West Coast
Hotel and the "switch in time" did not. Indeed, over the next half century it
consumed much of the classical conception of the Constitution.
So secure were the intellectual underpinnings of the
constitutional revolution, so self-evident the ambient cultural values of the policy elite
who administered it, that the object of the high court's jurisprudence was largely devoted
to the construction of a system for ranking the constitutional weight to be given
contending social interests. In the New Deal/Great Society era, a rule that was the polar
opposite of the classical era of American law reigned. A judicial subjectivity whose very
purpose was to do away with objective gauges of constitutionality, with universal
principles, the better to give the judicial priesthood a free hand to remake the
Constitution. After a handful of gross divisions reflecting the hierarchy of the elite's
political values had been drawn (personal vs. economic rights, for example), the task was
to construct a theoretical system, not of social or cultural norms, but of abstract
constitutional weight a given interest merits — strict or rational basis scrutiny.
The rest, the identification of underlying, extraconstitutional values, consisted of
judicial tropes and a fortified rhetoric.
Protection of property was a major casualty
of the Revolution of 1937. The paradigmatic case, written by that premiere
constitutional operative, William O. Douglas, is Williamson v. Lee Optical.23 The court drew a line between personal rights and property
rights or economic interests, and applied two different constitutional tests. Rights were
reordered and property acquired a second class status.24 If
the right asserted was economic, the court held the Legislature could do anything it
pleased. Judicial review for alleged constitutional infirmities under the due process
clause was virtually nonexistent. On the other hand, if the right was personal and
"fundamental," review was intolerably strict. "From the Progressive era to
the New Deal, [ ] property was by degrees ostracized from the company of rights.25 Something new, called economic rights, began to supplant
the old property rights. This change, which occurred with remarkably little fanfare, was
staggeringly significant. With the advent of "economic rights," the original
meaning of rights was effectively destroyed. These new "rights" imposed
obligations, not limits, on the state.
It thus became government's job not to
protect property but, rather, to regulate and redistribute it. And, the epic
proportions of the disaster which has befallen millions of people during the ensuing
decades has not altered our fervent commitment to statism. The words of Judge Alex
Kozinski, written in 1991, are not very encouraging." 'What we have learned from the
experience of Eastern Europe and the Soviet Union ... is that you need capitalism to make socialism work.' In
other words, capitalism must produce what socialism is to distribute."26 Are the signs and portents any better at the beginning of
a new century?
Has the constitutional Zeitgeist that has reigned in the United States since the
beginning of the Progressive Era come to its conclusion? And if it has, what will replace
it? I wish I knew the answer to these questions. It is true — in the words of another
old song: "There's something happening here. What it is ain't exactly clear."27
The oracles point in all directions at once. Political polls suggest voters no longer desire tax cuts. But, taxpayers
who pay the largest proportion of taxes are now a minority of all voters. On the
other hand, until last term the Supreme Court held out the promising possibility of a
revival of what might be called Lochnerism-lite in a trio of cases — Nollan,
Dolan, and Lucas, Those cases offered a principled but pragmatic means-end
standard of scrutiny under the takings clause. But there are even deeper movements afoot.
Tectonic plates are shifting and the resulting cataclysm may make 1937 look tame.
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."28 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.
Professor Tiger is not critical of these strategies. He views
this trend as the triumph of reproduction over production; the triumph of Darwinism over
Marxism; and he advocates broad political changes to accommodate it.
Others do not see these changes as quite so benign or culturally
neutral. Jacques Barzan finds the Central Western notion of emancipation has been
devalued. It has now come to mean that "nothing stands in the way of every
wish."29 The result is a decadent age — an
era in which "there are no clear lines of advance"; "when people accept
futility and the absurd as normal[,] the culture is decadent."30
Stanley Rosen defines "our present crisis as a fatigue
induced by ... accumulated decisions of so many revolutions."31 He finds us, in the spirit of Pascal, knowing "too
much to be ignorant and too little to be wise."32
I will close with a story I like a lot. It's a true story. It
happened on June 10, 1990. A British Airways jet bound for Malaga, Spain, took off from Birmingham, England. It was expected to
be a routine flight. As the jet climbed through the 23,000-foot level, there was a loud
bang; the cockpit windshield directly in front of the captain blew out. The sudden
decompression sucked Captain Lancaster out of his seatbelt and into the hole left by the
windscreen. A steward who happened to be in the cockpit managed to snag the captain's feet
as he hurtled past. Another steward rushed onto the flight deck, strapped himself into the
captain's chair and, helped by other members of the crew, clung with all his strength to
the captain. The slipstream was so fierce, they were unable to drag the pilot back into
the plane. His clothing was ripped from his body. With Lancaster plastered against the
nose of the jet, the co-pilot donned an oxygen mask and flew the plane to Southampton —approximately
15 minutes away — and landed safely. The captain had a fractured elbow, wrist and
thumb; a mild case of frostbite, but was otherwise unharmed.
We find ourselves, like the captain, 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.
1 James Boyd
White, When Words Lose Their Meaning (Univ. of Chicago Press 1984) p. 4.
2 Ibid.
3 F. A,
Hayek, The Road to Serfdom (Univ. of Chicago Press 1994).
4 Golembiewski
& Wildavsky, The Cost of Federalism (1984) Bare
Bones: Putting Flesh on the Skeleton of American Federalism 67, 73.
5 Ibid.
6 Hamilton, The
Federalist Papers No. 1 (Rossiter ed. 1961) p. 33.
7 Michael W.
Spicer, Public
Administration and the Constitution: A Conflict in World Views (March 1,
1994) 24 American R. of Public Admin. 85 [1994 WL 2806423 at *10].
8 John O.
McGinnis, The
Original Constitution and Our Origins (1996) 19
Harv. J.L.& Pub. Policy 251, 253.
9 Tom
Bethell, Property
Rights, Prosperity and 1,000 Years of Lessons, The Wall
Street J. (Dec. 27, 1999) p. A19.
10 Ibid.
11 Ibid.
12 Ibid.
13 John O.
McGinnis, The
Original Constitution and Our Origins, supra, 19 Harv.
J. L.& Pub. Policy at p. 258.
14 Ayn Rand,
Capitalism the Unknown Ideal (New American Lib. 1966) pp. 4-5.
15 Ibid
16 Jean
Francois Revel, Democracy Against Itself (The Free Press 1993) pp. 250-251.
17 Id. at p. 251.
18 Id. at pp.
250-251.
19 (198 U.S. at p. 75.)
20 Clint
Bolick, Unfinished Business (1990) p. 25, quoting Crisis in
the Courts (1982)
The Manhattan Report on Economic Policy, Vol. V, No. 2, p. 4.
21 Jean
Francois Revel, The Flight From Truth (Random House N.Y. 1991) p. xvi.
22 Id. at p.
xxxvii.
23 348 U.S. 483.
24 Tom
Bethell, The Noblest Triumph (St. Martin's Griffin, N.Y. 1998) p. 175.
25 Id. at p. 176.
26 Alex
Kozinski, The Dark
Lesson of Utopia (1991) 58
U.Chi. L.R. 575, 576.
27 Buffalo Springfield, For What
It's Worth (1966).
28 Lionel
Tiger, The Decline of Males (Golden Books, N.Y. 1999) pp. 21, 27.
29 Edward
Rothstein, N.Y. Times (April 15, 2000) p. A l7.
30 Ibid.
31 Stanley Rosen, Rethinking
the Enlightenment (1997) 7
Common Knowledge, p. 104.
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