Judge Janice Rogers Brown is back in the news, with Mark Schmitt and various members of the Volokhs discussing her promotion prospects. Henry has already noted her fondness for self-help guru Sam Beckett. Below the fold I reproduce a post of mine from 2003 about Brown’s rant—there’s really no other word for it—to the Federalist Society, delivered at the University of Chicago Law School in 2000. Mark Schmitt links to a similar outing from around the same time. She should have taken it on the comedy club circuit.
While reading Eric Muller’s defence of David Bernstein, I came across another of his posts:
Is it just me, or does this speech by Janice R. Brown seem a little, well, unhinged?
(Allen Brill has a chronology if you want to know who Janice R. Brown is.) Several of Muller’s commenters assure him that it’s just him and the speech is “entertaining and thought-provoking.” Clayton Cramer comments that it’s “splendid and thoughtful.” Well, that clinches it for me.
Actually, “unhinged” is a strong word, and I don’t think Janice R. Brown is insane. Also, I’m not in an position to parse her views on the Lochner decision. But as to her more general social theory… Well, the speech is a heady and unstable mix of libertarian obiter dicta, Randian bromides, culture-war cliches and, um, Procol Harum lyrics. No, really.
The whole thing is held together by the unbreakable bonds of conservative martyrdom. Speaking a few months before conversatives 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.
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.” 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.
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.
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.
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!
Democracy and capitalism seem to have triumphed.
Indeed they have, and surely nowhere moreso 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:
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:
Out of that [French] 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.
Even if you’re prepared to give up the New Deal, you might retain some hope that the Enlightenment—associated with the likes of Adam Smith, for instance—was A Good Thing. But you would be wrong:
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.”
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.
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.