The Pursuit of Perfection in Law and Politics

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 “Government is the only enterprise in the world which expands in size when its failures increase.”

 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.’”

Hon. Janice Rogers Brown

“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.”  

 

“A Whiter Shade of Pale”: Sense and Nonsense
The Pursuit of Perfection in Law and Politics

 

Hon. Janice Rogers Brown
Former Associate Justice, California Supreme Court, now a federal judge on the D.C. Court of Appeals. 

 

[Democrats held up her nomination for two years.]

 

The Federalist Society
University of Chicago Law School

[One wonders if Barack Obama was one of her listeners that day?] 


April 20, 2000


Full Speech Here

 

EXCERPTS

 

———————————————

 

There are so few true conservatives left in America that we probably should be included on the endangered species list.

 

———————————————

 

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.

 

Government is the only enterprise in the world which expands in size when its failures increase. Aaron Wildavsky gives a credible account of this dynamic. Wildavsky notes that the Madisonian world has gone “topsy turvy” as factions, defined as groups “activated by some common interest adverse to the rights of other citizens or to the permanent and aggregate interests of the community,”4 have been transformed into sectors of public policy. “Indeed,” says Wildavsky, “government now pays citizens to organize, lawyers to sue, and politicians to run for office. Soon enough, if current trends continue, government will become self-contained, generating (apparently spontaneously) the forces to which it responds.”5 That explains how, but not why. And certainly not why we are so comfortable with that result.

 

America’s Constitution provided an 18th Century answer to the question of what to do about the status of the individual and the mode of government. Though the founders set out to establish good government “from reflection and choice,”6 they also acknowledged the “limits of reason as applied to constitutional design,”7 and wisely did not seek to invent the world anew on the basis of abstract principle; instead, they chose to rely on habits, customs, and principles derived from human experience and authenticated by tradition.

 

“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.

 

—————————————————–

 

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?

 

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14 Responses to The Pursuit of Perfection in Law and Politics

  1. Mark T. Market says:

    Interestingly I’ve posted two counterviews of Collectivism. The first is the criticism, the second is a revisit in light of China. It hardly settles any debate, but my lesson is to always be on guard against naively taking history as a guide, and to remain constantly critical of ideas, no matter their merit.

  2. Allan Erickson says:

    To constantly criticize meritorious ideas seems self-defeating. If history teaches us that collectivist models routinely deny human rights, usher in abusive dictatorships, and generally amount to dismal failures, are we right to criticize the entire notion of collectivism? On the other hand, if models embracing individualism, economic freedom, social freedom and democracy routinely provide a general greater good for the greatest number, are we right to promote and support such models? So, on the one had you reject the failed and fascistic, and on the other, you support what works. The only other option, which you seem to suggest here, is endless inquiry, refusing to draw any conclusion, the perfect description of the American professor, as Rogers rightly notes, the lone promoter of socialism in the face of enormous evidence it simply does not work without the prosperity brought by capitalism.

  3. [...] “Government is the only enterprise in the world which expands in size when its failures increase.… [...]

  4. Mark T. Market says:

    ^ About constant criticism being self-defeating, I would beg to disagree. Consider for instance how during the recent bull market in housing and stocks very few were willing to criticize it. The thought that prices could collapse was ludicrous for many people–and it takes a crisis to wake people up and question their premises. I think the process of history is an ongoing and dynamic system–and we simply cannot close our minds to the possibility of error.

    And it isn’t a matter of “refusing to draw any conclusions” but merely to keep “open conclusions”. Arguably naively relying on history is the oversimplification. The only thing we have proven with this economic crisis is how flawed our initial premises have always been.

  5. Allan Erickson says:

    Mark,

    “To constantly criticize MERITORIOUS ideas seems self-defeating.” That statement is a far cry from ” . . . constant criticism being self-defeating.” Also, it’s important to define terms. “Criticism” can mean “evaluation” as in a review of a play or literature, and it can also mean “negative or condemning opinion, or finding fault.”

    To constantly find fault with proven and value ideas is indeed self-defeating. Hence, if an American, or one who calls himself an American, constantly finds fault with the Constitution, that individual is either self-defeating, or redefining himself as something other than an American.

    If you meant constantly evaluating ideas regardless of merit, then we have agreement. The evalution of a meritorious idea with either prove its merit, and increase applicability, or reveal it wanting, worthy to be avoided.

    So far as history is concerned, it is always viewed through someone else’s lens and thus provides only a partial view, admittedly a limited guide, but an enormously useful one nonetheless. Studying Roman history reveals much about our present foibles. Studying any number of socialist societies indicates the flaws in collectivism.

    Many, many economists and pundits predicted 12 years ago the internet start up bubble would burst, that the attendant San Jose real estate madness was a precursor to the inexorable collapse in the overall housing sector, and there were many who warned about the dangers of massive government spending, the lack of regulatory oversight at Fannie Mae, the exorbitant borrowing to engage risky investments and the attempts to spread risk globally. All these noted red lights on the dash board came from people who had studied history.

    Presently, the insanity of printing money and borrowing more from the future to fund bailouts and stimulus packages is right condemned, noting FDR’s New Deal and LBJ’s Great Society, both ill-advised and counterproductive.

    Far from closing our minds to the possibility of error, serious study and rational evaluation (criticism) helps us maximize return from meritorious ideas and avoid catastrophes.

    What initial premises are you referring to by the way?

  6. Mark T. Market says:

    ^ Yes I mean constant evaluation, REGARDLESS of merit. It is not criticism for criticism’s sake of course–but with the intention of constant improvement.

    What I mean about “Initial premises” are anything that we take as given as of the moment. Recognizing that history is dynamic means nothing can be held to be absolute in principle nor in practice.

    Again I find nothing wrong with “Fault finding” — if the intention is to validate ideas. What is self-defeating is coloring the process of critique whether negatively or positively. At the end of the day, what we want to avoid is “confirmation bias” or finding reasons to prove ourselves correct–when the real insight is to find instances where our current paradigms are “wrong” or no longer applicable.

    I have a related discussion with K.M. about political ideals vs. political systems both on my blog and K.M.’s blog.

    Ideals are judged by moral value or principle, and can always be accepted or rejected. While political systems which are the practical application of ideals can succeed or fail in practice as far as history goes.

    The failure of a political system is judged empirically through history and leads to a review of the acceptability of the underlying ideal. But ideals can’t be invalidated using historical basis–simply rejected in favor of other ideals. I guess this is where your word “meritorious” comes in–in judging the “ideal”.

    • Allan Erickson says:

      Understood. To simplify: work hard to objectively evaluate what works, to achieve the greatest good for the greatest number. Retain what moves society toward that goal, and reject that which runs contrary to goal attainment. Any such evaluation involves confronting bias and errant presuppositions.

      Two problems I have with your approach however. You seem to indicate evaluation of political systems should be performed with an eye on history, but that such evaluation should be guided by a built-in bias, a presupposition that there are no absolutes, either in principle or in practice.

      The Founders operated with a series of ‘initial premises’ or ‘underlying ideals,’ resulting in the greatest governmental structure ever conceived. These ideals and premises involved embracing absolutes.

      “We hold these truths to be self-evident, that all men are created equal, and endowed by their Creator with certain unalienable rights, to Life, Liberty and the Pursuit of Happiness.”

      Deny all men are created equal and you immediatety set up a caste system, allowing one set of groups to dominate and exploit another.

      Deny the Creator’s role and you immediately subject men to the overbearing power of the state. On the other hand, if we are endowed by our Creator with rights, should government seek their removal, such government must contend with God. This was the rationale used to confront the King of England. In a king versus God contest, the king must go. Since we have strayed from this absolute, people now believe government endows rights, and can therefore take them away with impunity, but this was never the Founders’ understanding or intention. Thus, by foresaking an important absolute in our founding principles, we make ourselves vulnerable to totalitarianism.

      A fair reading of dynamic history reveals the Founders embraced the absolute Christian notion of the fall of man, and the resulting tendency of power to corrupt, gaving rise to the concept of balancing power via checks and balances, an internal accountability system between the three branches to address this destructive aspect of our nature.

      Throw out absolutes, and you throw out the compass by which we’ve successfully navigated, while you throw all evaluation to the winds of personal preference, hardly objective, and most certainly, prejudicial, in as many dimensions as there are personal preferences.

  7. Mark T. Market says:

    Nice exchange by the way Allan.

    Meanwhile agree 100% on the dangers of “throwing out absolutes”. To bridge it back to your statement of “self-defeating”–I think this is the case when the process of criticism doesn’t yield refinement or clarity but instead produces more fence-sitting or neutrality. Rather than solidifying a stand or causing people to adopt an alternative stance, sometimes people would rather become “moral agnostics” and give sanction to tolerance to anything.

    I was able to read and react to an essay by Ayn Rand on rationality, where she slams the idea of moral agnosticism. This resonates with the value you place on absolutes, once you’ve found them, as a compass to navigate with. Witholding judgment can be carried to a fault (another term for: political correctness) such that the process of evaluation becomes an exercise in intellectual laziness (or the Professor syndrome you also mentioned earlier)–those who have many opinions but never a definite stand.

    • Allan Erickson says:

      I too appreciate our interaction Mark. It is refreshing to discuss and exchange ideas with someone who contributes in an articulate and constructive way. Thanks for helping me learn and understand. It reminds me of the passage: as iron sharpens iron, so one man sharpens another. Onward!

  8. [...] T H E    C O L L E C T I V I S T    IMPULSE [...]

  9. [...] collectivist impulse Janice Rogers Brown has decried is only a part of the story.  The impulse to achieve security and control, even at the [...]

  10. [...] Janice Rogers Brown: The Pursuit of Perfection in Law and Politics [...]

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