THE ABOMINATION THAT JUSTIFIES ABOMINATION:

The Bush Court Nominee Who Wants to Roll Back the New Deal (Jonathan Rees, 11-05-03, History News Network)

That dispute concerns [Janice Rogers Brown's] ideas about the Supreme Court's opinion in Lochner v. New York, decided in 1905. "In speeches," editorializes the Washington Post, Brown "has openly embraced the Supreme Court's so-called 'Lochner' era . . . . Across the spectrum of constitutional law scholarship, there are few points of greater consensus than that this period is a blot on the Supreme Court's history." [...]

The Supreme Court's application of "freedom of contract" was spotty in the years following Lochner. Then, in the 1937 case of West Coast Hotel v. Parrish, which upheld a minimum wage law for women in Washington State, the Court overturned a 1923 precedent that had depended upon Lochner. Although the West Coast Hotel ruling bypassed Lochner, from 1937 on "freedom of contract" has been effectively dead.

West Coast Hotel was a turning point with regard to the fate of New Deal legislation before the Supreme Court, causing "the switch in time that saved nine." This refers to the nine Supreme Court justices not having to accept additional company on the bench as a result of the subsequent defeat of Franklin Roosevelt's court-packing plan. After this ruling, New Deal laws that might have been ruled unconstitutional in previous years were generally spared.

For this reason, Justice Brown is right to suggest that 1937 was the beginning of tremendous change in American legal history. If "freedom of contract" had still been important to the Court in 1937, laws like the Social Security Act, the National Labor Relations Act (which protects the right of workers to organize into unions) and the Fair Labor Standards Act (which includes the first minimum wage and bans child labor) would likely have been ruled unconstitutional violations of this right.

The debate, therefore, that the United States Senate should be having with regard to Brown's nomination should not be "Does 'freedom of contract' exist in the Constitution?" Instead, senators, particularly Democratic senators, need to decide, "Should we be confirming judges who want to destroy some of the most popular and effective reforms in the history of the United States?"

Mr. Rees appears not to understand that the criticism of Lochner is actually based on the danger of the idea that judges should just decide whether they like the results of Congressional actions, instead of examining whether the actions are constitutional. But, more important in this instance, he and the Post ignore what Ms Brown actually said, "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):

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 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." 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.'" 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." 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.'"

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.

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." 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." 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."

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." 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. 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. 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."

Ms Brown's main point about the judiciary's role appears to be that they chose to treat "personal" and "property" rights completely differently on the basis of nothing more than a whim. This despite the fact that, as pj has pointed out, the 14th Amendment, which is the device they use to give themselves authority over these questions, states: "nor shall any state deprive any person of life, liberty, or property, without due process of law". Now there are perfectly coherent, even compelling, arguments you can make that even the most confiscatory and oppressive of government actions passes this due process test so long as it is adopted in orderly fashion. But, if that is the case, then obviously you can't turn around and say that oppressive government regulations of personal behavior are barred by the same language. If there is no "right to contract" because it is nowhere specifically enumerated in the 14th, there is likewise no "right to privacy". Of course, on the other hand, the 14th, if it means anything, suggests that states should at least be scrutinized when they take property--which must involve contract at some level--or lives--which must implicate legalized abortion at some level. And, again as pj notes, Article 1, Section 10 of the Constitution does explicitly state: "No State shall ...pass any...Law impairing the Obligation of Contracts". You can hunt high and low and never find a word about "privacy" in the main text. Ms Brown would appear to be on rather firm constitutional footing in what she says.

Posted by Orrin Judd at November 5, 2003 8:18 PM