Janice R. Brown Speaks

by Kieran Healy on November 3, 2003

While reading Eric Muller’s defence of David Bernstein, I came across another of his posts:

bq. 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 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,

bq. 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?

bq. 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:

bq. 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:

bq. 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:

bq. 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!

bq. 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?

bq. 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:

bq. 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?

bq. 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:

bq. 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:

bq. 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:

bq. 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.



Keith M Ellis 11.03.03 at 10:51 pm

“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!”

You know, I can _never_ get enough mocking of Rand and her acolytes. Just like the fourteen-year-olds you say they are, I can’t decide whether I hate them or find them perversly lovable. They are adolescence expressed intellectually: everything out of proportion, self-important, melodramatic, alienated, insecurity masquerading as condescension. One (well, me) wants to forgive them because they’re having “growing pains”, that it’s a necessary phase; but then I realize that, unlike in the case of biology and sexual maturation, there’s no imperative for them to advance. They’re stuck. They _want_ to be stuck. And that’s why they deserve ridicule.

Oh, sorry. What were we talking about?


chun the unavoidable 11.03.03 at 11:33 pm

The Fountainhead is the feminist novel.

My fellow immiseration-theorists are strongly supporting Janice R. Brown for the Supreme Court, and you should too.


Arthur D. Hlavaty 11.03.03 at 11:37 pm

I’m not sure whether Judge Brown or I was smoking better shit in the sixties, but I don’t remember that line about clean dirt in “Whiter Shade of Pale.”


David Sucher 11.03.03 at 11:49 pm

You caught me with the Procol Harum allusion and now I want to know more Maybe she’s my kind of DJ.


halle 11.04.03 at 12:12 am

i was mad for Ayn Rand when I was exactly 14. good god.


Rob 11.04.03 at 12:23 am

Objectivists: the only place you find them are in high schools, college campuses, and apparently the California judiciary.


Nicholas Weininger 11.04.03 at 12:35 am

Aggh. This is the kind of complete hash you get when you try to reconcile economic libertarianism with theocratic cultural conservatism. It makes real, serious, principled, radical libertarianism look bad. I say that as a real, serious, principled, radical libertarian, and as a strong supporter of Brown’s nomination.

For those who are using this as an opportunity to mock Rand, I’ll point out that stuff like the above is a reason why Objectivists are not conservatives. It’s also an example of what happens when conservatives try to appropriate the parts of Objectivism that suit them while ignoring, for example, the Objectivist critique of organized religion and of the religious conception of human nature. (I’m not an Objectivist, but I think Rand’s ideas deserve serious examination, not sneers).

So why, you may ask, do I still support Brown’s nomination? Well, she’s still a hell of a lot better by my lights than your typical run of nominee; I can’t see Richard Epstein or David Friedman getting nominated anytime soon. She clearly does want to strike down as much of the welfare-regulatory state as she can, and that alone sets her way above the common run. It may even be that she doesn’t really believe all the social-conservative crap, and is just paying lip service to it in order to appease the theocrats who pull so many of the Bush Administration’s strings.


Allen Brill 11.04.03 at 1:07 am

Bravo! Since I’ve been linked by Muller and Bernstein for the past two days (and indirectly by Volokh), you should read some of those “14 year-olds” defend the “freedom” of desperate workers to contract for 60+ hours work-weeks. I suppose it would be impossible to make such arguments much past the age of 14 even for children of privilege.

Nicholas does make a very valid point about the absurd attempts to marry Rand and Jesus. I’ve critiqued that from the Christian side of things.


Ophelia Benson 11.04.03 at 1:30 am

Yes, I was just about to make the point about Brown’s confusion if she thinks Rand was keen on good ol’ down home theism.

But I don’t get the bit about taking Rand’s ideas seriously instead of mocking them. Why? Why should we do that? Rand was a bad screenwriter and then a very bad novelist – so why do we have to take her ideas seriously? If Stephen King or Steven Spielberg should suddenly invent a ‘philosophy’ would we feel obliged to take it seriously? Why would we? Do we have to take seriously the ideas of everyone who has some? Wouldn’t that be awfully time-consuming?


scylla 11.04.03 at 1:32 am

Wow. Thanks for that. And your final precis is worth framing.

I’m surprised at her style actually–after reading a detailed review of her opinions on a range of issues–I expected a delivery more dour.

Instead, she combines the hyperintellectual self-absorption of Camille Paglia with the breathless gooniness of Peggy Noonan. After the first few lines I wondered, what on earth did she go to law school for–and how did she imagine she could bring all that visionary stylin’ under the confining intellectual discipline required by a judicial appointment? Actually, I guess that was not a problem–since apparently she contributes a lot of solitary dissents where she can characterize the law in whatever she wants.


david 11.04.03 at 1:39 am

If she believes what you’ve printed, she is either unhinged, as in insane, or she’s very stupid, not in the “I love that show with that guy who grunts like an ape” way, but in the “Apes don’t read Plato/Yes they do Otto, they just don’t understand it” way.

Rand was stupid in the “I think I’m really great and everybody else really is stupid so there” way.


david 11.04.03 at 1:41 am

“its gruesome offspring TANF” Forgot to say, that’s really funny.


Invisible Adjunct 11.04.03 at 1:51 am

Nice piece, Kieran. You’ve managed to make some sense out of a good deal of nonsense.

But you forgot to mention the concern over the Decline of Males. It’s all about welfare mothers shacking up with bureaucrats and then voting for Clinton…


Yuval Rubinstein 11.04.03 at 1:52 am

I can’t see Richard Epstein or David Friedman getting nominated anytime soon.
Thank god for that. Unfortanately, we’ve got the equivalent in Richard Posner and Frank Easterbrook on the 7th Circuit.
She clearly does want to strike down as much of the welfare-regulatory state as she can, and that alone sets her way above the common run.
Er, I thought you conservatarians were opposed to this kind of obtrusive, activist government. Silly me.


Nicholas Weininger 11.04.03 at 2:22 am

When did I say I was a “conservatarian”? There’s no “conserva” about me. I have no truck with the idea that judges should be deferential to legislatures or to the will of democratic majorities, especially not when the rights of property and contract are at stake. Brown seems to want to engage in activist anti-government, and I’m all in favor of that.


MDtoMN 11.04.03 at 3:12 am

I’ve done stupid things in my life, particularly in my youth, but I never, ever, in any way, felt even the slightest respect for Ayn Rand’s work.


Avinash 11.04.03 at 3:54 am

“Objectivists: the only place you find them are in high schools, college campuses, and apparently the California judiciary.”

…and also the US Federal reserve. ;)



Keith M Ellis 11.04.03 at 4:02 am

I think Greenspan’s handled the fed quite well, and so I try really hard to ignore his Randroid tendencies.

But, you know, as a philosophy for bankers and Hollywood screenwriters, it makes a certain sense.


praktike 11.04.03 at 4:06 am

Damn those Objectivists from Santa Montica! When are they going grow up?


AKMA 11.04.03 at 5:59 am

It turns out that the pivotal lyrics in Judge Brown’s speech don’t appear on the record (it struck me as funny that I shouldn’t recall them, since I’ve heard the cut hundreds of times). I wonder whether she’s such a big Harum fan that she went to a concert and heard them — unlikely, given her characterization of them — or she Googled for the lyrics and reproduced what she found, without noting that ninety-nine percent (or more) of her audience would not recognize the lyrics she was quoting.

Either way, it doesn’t make me more confident about her acuity as a judge. . . .


wcw 11.04.03 at 6:06 am

funny. I’m a real, serious, principled, radical believer in freedom of thought and action and yet I would support Brown if and only if her appointment came with Scalia’s resignation attached.

see, nothing I have read of Brown’s opinions suggests that she is any particularly exceptional friend of freedom’s in general, except perhaps of the quite peculiar freedom of prison wardens to make up the rules as they go along. did I miss a juicy dissent somewhere?

oh, wait… I forgot that in North America “libertarian” is a loaded code word. silly me, thinking a principled libertarian would believe in freedom of thought and action.


Andrew Case 11.04.03 at 3:03 pm

I don’t read CT for the humor, but this made me laugh out loud: “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!”



rea 11.04.03 at 3:19 pm

Nobody’s pointed this out yet, but she actually calls the New Deal the equivalent of slavery. I suspect some of her ancestors could have explained the difference to her. “Unhinged” is putting it mildly.


C.J.Colucci 11.04.03 at 4:12 pm

I wonder if the Bush administration is following a deliberate strategy here. Most of the nominees, of whatever ethnicity, are ordinary mainstream conservatives. Not the sort of folk I or Senate Democrats would choose, but people as entitled to confirmation as the ordinary mainstream liberals we would prefer. They do, and should, get confirmed with little trouble, indeed, far less trouble than ordinary mainstream liberals faced in ther Clinton/Republican Senate years.
The real wack-jobs tend to have some ethnic or geographic marker attached: Pickering/Southerner; Pryor/Catholic (and Southerner, a two-fer); Brown/African American Woman (a classic two-fer). I exclude Estrada/Hispanic because the principal objection to him was that no one, except those who appointed him, had a clue what he stood for or a way to find out.
I suspect that the administration is deliberately packaging its high-profile wack-job nominees in ethnic/geographic/gender wrappers to make the opposition to them seem like something other than ordinary opposition to wack-jobs. (The Democrats could do the same thing, too, if they chose. The legal academy — though not the bench — is liberally sprinkled with left-wing wack-jobs of politically interesting ethnicity, geography, or gender. But they don’t get nominated. Democratic presidents appoint boring mainstream liberals and moderates, and the Republicans squabble even over them.)


scylla 11.04.03 at 4:12 pm

Nobody’s pointed this out yet, but she actually calls the New Deal the equivalent of slavery. I suspect some of her ancestors could have explained the difference to her.

I doubt she was interested in what her ancestors had to say. Sadly for her, Ayn Rand wasted her entire life avoiding the unpleasant lesson of the Russian Revolution. When she was an immpressionable teenager, her comfortable middle-class family got screwed during the chaos and had to start over in Ameri-kay. AND SHE NEVER GOT OVER IT.

On a practical level, her entire philosophy can be reduced to a single underlying theme: “Stay the hell away from my stuff.”

Sadly for us, modern corollaries emerged to be elucidated by the Chicago school of economics: “What’s yours is mine too, once I manage to take it” and “The only role of government is to prevent you from getting it back” — popularly known as “Gimme and Getback.”

On these two commandments depend all the laws and the prophets.


Harry Tuttle 11.04.03 at 4:42 pm

Nope, nutty as a shithouse rat. When you ignore history and start making it up to fit your presumptions you are either a lieing sack of crap or you are insane. I’ll give this loon the benefit of the doubt.

It seems to be an inevitable artifact of cultural disintegration. Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War…

A century after Thucydides wrote that, Alexander spread Greek culture to the four corners of the world. For a thousand years you could find a greek speaker anywhere from the Straits of Gibralter to the Indus river. The philosophies of the Hellenistic world formed the very foundation of western civilization. That is cultural disintegration!?

Objectivism: Taking the Enlightenment out of enlightened self interest.


rea 11.04.03 at 6:41 pm

“Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War”

I’m glad you pointed to that one, too, Harry. Now, I’m no great authority on Thucydides, but I don’t recall him particularly lamenting that. Really, he doesn’t talk much about post-war events at all–his history was left unfinished at a point 7 years or so before the war’s end.


Missed Me 11.04.03 at 9:33 pm

I encountered Ayn Rand at seventeen; too late. I like the capsule summary


John Strom 11.04.03 at 10:26 pm

Well, y’all clearly don’t like her, but with bernstien, muller, bainbridge, solum, and others defending her, it’s getting kinda tough for you to argue that she’s outside the mainstream.


rea 11.04.03 at 11:49 pm

“but with bernstien, muller . . . defending her”

??? No, the post shows Bernstein CRITICIZING her, and the mention of Muller was just in passing.


Ophelia Benson 11.05.03 at 12:07 am

Oh, thank you, missed me; how kind. I wrote that definition for the dictionary…

(Too bad the link doesn’t work. I wonder if this will.)

Well it does in preview, but I gather that doesn’t always mean it will once it’s posted. Ah well.


W. Kiernan 11.05.03 at 12:21 am

Aw come on, I’m gonna write my Democratic representatives and ask them to drop their filibuster. I want to be tried for a major felony before her. I mean if I’m guilty. What real American wouldn’t find delight in the thought of a federal judge who’s totally nuts?

Speaking of moving the keys by force of will, I graduated from Van Vogt to Rand when I was a young teen. Rand was a slan, you know! What saved me from the worst effects of that sort of book abuse was prior exposure to Lolita.


Gregg 11.05.03 at 2:44 am

Is it my imagination, or is “Objectivism” basically Marxism with all of the progressive bits taken out?


Andrew Case 11.05.03 at 2:41 pm

Gregg – you’re on to something. I read Rand and Marx back to back in high school (gave me something to keep me busy while everyone else was out getting laid). The similarities are striking. I wouldn’t call the difference “the progressive bits” – they’re equally distant from reality, with only minor differences. Marxist utopia comes from cooperation, Objectivist utopia comes from competition, and both require human beings to be both completely rational and dedicated followers of the respective philosophies. Utopia is easy if you assume everyone will think and act the same way.


Matt Curtis 11.12.03 at 4:28 pm

Ms. Benson:

The reason to take Rand’s ideas seriously is not because she was a novelist or screenwriter. Just as it is not appropriate to take Justice Brandeis’ or Justice Souter’s ideas seriously just because they were or are Supreme Court Justices. We should take Rand’s ideas seriously because they have merit – they stand to reason. Whether you think she was a poor writer, is a poor reason to simply ignore the ideas she expressed.

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