JUSTICE BRENNAN: ROBUST AND WIDE-OPEN
I want to take a quick break from my mini-series on Terry Eagleton to discuss an article* about Justice William Brennan, supporting his stature as a “liberal champion”.
The comments made by the author, Justin Driver, give so clear and succinct a statement of Brennan’s approach that I consider them to be of great value to any clear-eyed assessment of how Things have gotten to their current condition in this country.
The author takes a swipe at ‘conservatives’ who have tried to paint Brennan as what could be called a ‘deliberate, scheming and manipulative judicial activist’ (my phrasing). As early as 1984, he notes, an article described Brennan as being “among the purest of the result-oriented judges who first determine how they want a decision to come out (the ‘fundamental fairness standard’) and then go about trying to find a legal justification” for what they have already decided.
Another author is mentioned for having observed in 1988 Brennan’s “penchant for identifying his personal predilections with constitutional dogma”.
Driver wants to support the spin that Brennan was a key and genuine “liberal champion”. I think Driver is indeed correct, but that what he demonstrates in his review establishes clearly just how frakkulent a championship that has played out to be for the country (or, in the inimitable words of Chester A. Riley: “What a revoltin’ development dis toined out ta be!”).
Amazingly, Brennan indeed had once nobly asserted (in the 1964 case New York Times v. Sullivan) that “debate on public issues should be uninhibited, robust, and wide-open … it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”. Well said! It is the indispensable function of a genuinely deliberative public democracy; the process by which Citizens deliberate and sift and analyze together in considering matters of great import to the common-weal.
But surely this classically Liberal (not to be confused with the contemporary ‘liberal’) principle has been hugely undermined, and was undermined from Brennan’s own Left before it was taken over by the Right. Before Bush-era public officials were shielded from ‘protest’ or even un-approving remarks in public appearances, a broad and sweeping kaibosh – regulatory and statutory – was put on speech that was ‘offensive’, ‘hurtful’, ‘hateful’, ‘insensitive’ to this or that favored demographic. As so often in recent American political history, a seemingly ‘liberal’ principle unthinkingly embraced by pols and bureaucrats in the service of their ‘liberal’ agenda then – and hardly unpredictably – compounded their potential for frakkery when adopted by the Right.
By which time the mainstream media had become so desperate to remain viable and influential that they simply parroted the press releases of whomever threw some ‘access’ their way, refusing to analyze for fear that their analysis might offend current or potential future ‘access’ to the history-makers.
Which resulted , I would say, in the American public becoming used to believing, with the Red Queen, “as many as six impossible things before breakfast”, day after day after month after year after decade.
Until now the point has been reached where a substantial chunk of the vital Citizenry – supposed to be the governors of the government in the Framing Vision – are hard-pressed not only to distinguish fantasy and fraud from reality, but also even to muster the competence to think as to how they might go about that vital Kicking-of-Tire and analysis and individual and then mutual deliberation.
If ‘mass politics’ weren’t challenging enough, Identity-Politics and its emotional, anti-rational or manipulatively fake-rational agitprop in the service of achieving the ‘deals’ necessary to impose its demands has provided the second and even more lethal prong of a double-whammy against genuine democratic process.
But it is toward the very end of the article that Driver really gets to the heart of the Brennan-legacy matter (all of the remainder of this Post is based on the last two columns on the last page of the article, page 39).
Brennan, he says, “was a crucial part of the coalition that extended Brown’s [i.e., Brown v. Board of Education, the 1954 case decided against the Topeka, KS board of education] fundamental principle over the ensuing three decades”.
I pause for a moment to recall a point I have made before on this site: the adoption of the legal thinking specific to civil-rights cases of the 1950s sparked the adoption of the entire civil-rights ‘script’ and ‘scenario’ as an implied (and – vitally – publicly unquestionable or unchallengeable) template or paradigm by later ‘advocacies’ and ‘revolutions’ in the 1960s and 1970s.
This was a hugely fraught gambit, gravid with ill-consequence, both as to the Content of the idea and as to the Method by which it was insinuated into American political life.
The Content of this ‘adoption’ gambit was largely inaccurate to begin with. The ‘Negroes’ of the Jim Crow South were deliberately and consciously restrained from the exercise of basic political rights guaranteed by the Constitution and by the immediate post-Civil War Amendments as a matter of purposeful State policy by the Southern States collectively if informally known as the Jim Crow South.
This state of affairs was repugnant to the national ideals (as even slavery had been) and as soon as the mid-1950s televised examples of Jim Crow dynamics in action had flashed across the country, a general public antipathy to such a condition quickly manifested itself in favor of the suppression of the already clearly illegal and unconstitutional Jim Crow regime.
But after the corrective steps taken by the Court and the Congress up to and including the Brown case of 1954 and the Voting Rights Act of 1965, there was A) a very legitimate question of just how much farther government action could go without deranging – or certainly un-balancing – the essential American principles of government and democratic political process.
Because B) in no other part of the country did there exist so clearly and provably illegal and unconstitutional a system as the Jim Crow regime as it was enforced by the States of the South.
Further government action – in regard to the black population let alone any follow-on Identity or Identities – was going to be doubly fraught: i) there was no such overt illegality anywhere else in the country, and thus ii) there was no such clear and strong public consensus either on the nature of any further problems/complaints or on the most suitable and workable way of addressing such problems/complaints.
The Jim-Crow era template thus inaccurately portrayed the situation in the rest of the country and therefore its further deployment would enjoy no such easy and sure public consensus.
Thus the Content of the “further extension” of the Brown principle was going to be lethally weakened by both the inaccuracy of its purported assertions or implications about further situations in other parts of the country.
And then the Method of implementing any such “further extension” was going to have to either advance through a long slow process of public deliberation and consensus-building or else it would have to be imposed by the national government. Which would be on its face a profoundly dangerous dynamic to set loose, the deployment of which was easily justified against the States of the Jim Crow South only because their regime was and had for almost a century been clearly and overtly and deliberately noncompliant with clear and vital and fundamental Constitutional provisions.
But absent that overt Constitutional noncompliance on the part of State governments, this gambit would wind up being an exercise in government-by-imposition that could not avoid side-stepping or undermining genuine democratic, broad-based deliberative process conducted by the Citizens as well as their elected representatives.
In no other part of the country was there such a State-administered un-Constitutional regime, and of a regional scope encompassing a number of States. There may have been – as there would soon be – the possibility for further complaints seeking redress in other parts of the country for other less-clear problems, but those would, ideally and necessarily, require a broad and deep national discussion in order to build a consensus: such ‘problems’ and ‘complaints’ were neither clearly visible nor instantly acceptable to the reasonable Citizen … this would not be wise ground for a forceful imposition of government force as had been deployed against the Jim Crow South.
So it is stunning to read Driver as he then asserts that the Brown principle which Brennan helped “further extend” insisted “that the judiciary plays a vital role in ensuring the American experiment in democracy functions in a manner that does not appear incompatible with modern constitutional understandings”.
That is precisely what was not happening.
Because by deliberately mis-applying the Jim Crow template to numerous successive ‘revolutions’ – the second and Northern urban phase of civil-rights in the post-1965 era, the torturous bureaucratic imposition of wide-spread affirmative action, the ‘gender revolution’ in almost all of its manifestations, and further successive revolutions – Brennan’s efforts resulted in the Judiciary taking the lead in justifying, indeed requiring, the government’s imposition of itself upon the entire national culture the same way that it had – i.e. quickly and with the full force of broad and sustained federal imposition – in the almost historically unique and anomalous Jim Crow situation.
And since the issues for which the government claimed the warrant for such profound and forceful imposition precisely did not enjoy the wide public consensus that had existed in the matter of Jim Crow, then the government precisely had to deploy itself anti-democratically.
And you notice here in Driver’s statement the crapulent concept of “appearance”. As in ‘not-substance’ or ‘not-substantial’. The whole thing was a matter of spinning your ‘reform’ so as to at least maintain the appearance of compatibility with, I would have to point out, not mere “understandings” but instead with very fundamental constitutional principles.
It was here that an anti-democratic ‘elitism’ of Correctness took root in the Beltway, far surpassing what the elitist Progressives of the Prohibition era had sought to achieve (with such shocking counterproductive consequences) half a century before. **
This is a poisoned font of ‘appearance politics’: it’s all on the level if you just hold your head the right way. This is no way to run a railroad, and – as is now becoming clear with ineluctable and rock-solid stubbornness – the trains don't run on time around here anymore.
And Driver knows this, and doesn’t want to admit it. Which is why his intended crowning encomium to Brennan fizzles in such a clunky and vague way: “in ensuring that the American experiment in democracy functions in a manner that does not appear incompatible with modern constitutional understandings”.
What Driver is slyly seeking to avoid here is that those “modern constitutional understandings” essentially saw the Constitutional principles (and the Framing Vision) as “quaint” and no longer relevant, in the face of the numerous ‘emergencies of outrage and rights’ that the Dems sought to mollify with an increasing and intensifying deployment of federal imposition upon a Citizenry that ‘just didn’t get it’ and therefore needn’t be consulted in the first place.
Thus Brennan’s project (to ensure that what could not easily be achieved through democratic process could be imposed by government fiat lubricated by judicial declarations) and Driver’s project (to make this all seem the epitome of democratic process) were and continue to be profoundly dishonest.
And gravid with counterproductive consequences beside which the shocking results of Prohibition pale in comparison.
Nor is any of this ascribable merely to a winsome American impatience to accomplish good and great things. The ‘revolutionary’ potential and elements in the post-1965 agitations – which should never have been allowed to infect genuine democratic processes of consensus-building and deliberation and public debate – were instead ‘valorized’ by the Dems precisely because in 1972, when the now demographically desperate Dems rolled out their ‘new model’ Party Vision in the presidential election, they were given one of the soundest public rejections in American political history, losing the election 49 states to one (Massachusetts, home turf of Teddy Kennedy).***
It was at that point that the fundamentally anti-democratic ‘revolutionary’ wing of the assorted ‘advocacies’ of the new Identities – led by a radical feminism soused with Leninist and Maoist theory directly or as interpreted by a platoon of European tiersmondiste thinkers who rejected all Western ideas and democratic processes – were brought to the fore in the Dems’ now urgent effort to fig-leaf their pandering to their newly ‘valorized’ and freshly- constructed demographics.
And from this flowed the truly anti-democratic Beltway embrace of the rejection of the nation’s vast and long-embraced ‘bourgeois’ or ‘middle/working class’ culture and – as can now be so frightfully seen – the industrial and economic Productivity and the civic culture of the commonweal that that culture had long sustained.
Brennan was indeed instrumental in seeing to it that the Supreme Court and the Judiciary played a major (and in the absence of democratic consent, a necessary) role in accomplishing this treacherous frakkery.
Driver calls this “animating theme” of Brennan’s “living constitutionalism”. Which is in many respects a code phrase that boils down to the arrogant assertion that the Constitution and the Framing Vision were “quaint” and no longer worthy of respect when compared to the fever-swamp illuminations of the radicalized Identity advocacies now animated by the awareness that the Dems were ready to put the entire resources of the Beltway (and the nation) at their disposal and engorged with the many-multipled hundreds of billions in public monies that the Dems were prepared to shower upon their dampdreams.
Nor am I here implying a valentine to “originalism”, the counter-theory ignited by the Left’s chicanery.
What neither Leftist nor Rightist cared to imagine was a genuine democratic Constitutionalism whereby the Citizenry – The People – would be given the time and accurate information to conduct a broad and deep process of public deliberation and the building of a consensus.
The Dems had seen in the election of 1972 that they had nothing to gain from that and so much to lose for themselves, and thus treated The People as a donkey that ‘just doesn’t get it’.
And in a hardly-unpredictable parallel illumination, the Republicans saw that corporate power would – as it always had – be highly amenable to a donkey-citizenry rather than a robust and assertive (and unionized) People whose governance of the government was far too inhospitable and unpredictable to suit the schedules and schemes of great and powerful interests.
For both sides, it was easier to buy a few pols rather than to convince a great People. Thus The People had to go: and this not being Stalin’s or Mao’s geographic turf (and since The People were given a major role in the Framing Vision of democracy) The People would be weakened in numerous ways and deliberately confused and misinformed, assigned thus in the great National Adventure the role of the cattle-herds in a B-movie Western, useful only for fodder or for stampeding on cue.
Driver continues along his chosen path: “Brennan did not suggest that the original understanding played no role in constitutional interpretation; he contended instead that its role is necessarily a limited one”, which Brennan slyly spun thus: “We current Justices read the Constitution in the only way that we can – as 20th-century Americans”.
BUT that phrase “20th-century Americans” was itself code for what I would say is better put as ‘we post-1972 liberals who reely reely need more conceptual space to get what we want right now’.
Originalism’s enterprise, in Driver’s accurate phrase, was “quixotic” (immediate ancestor of the mid-00’s declaration that the Constitution is “quaint”). That is somewhat true.
But it is also beside the point. What was fundamentally and vitally at issue was whether genuine democratic political process as envisioned at the Framing was going to be allowed to remain vital, or whether it would be kicked to the curb in favor of the treacherously unholy, Frankenstein blend of homegrown Progressive ‘elitism’ and Leninist-Maoist revolutionary cadre ‘vanguard elitism’.
It is this truly awful and awe-full treachery that will come to be seen as the hallmark political development of the past Biblical 40 years, when historians come to conduct a postmortem.
Historically speaking, this watershed mistake – or treachery – is ‘visible from space’, and it will be the sad wonder of future generations that this Age failed to see it for what it was all along.****
Driver continues with Brennan’s burbling: “The ultimate question must be: what do the words of the text mean in our time?” BUT of course, that is not nor ever was the ultimate question.
Rather, the ultimate question is and was and always will be not one of words but rather: what role does genuine democratic process play in the Shaping and sustaining of American culture and society, and of the American polity itself?
Brennan piously continues to declaim: “For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs”.
Very nice. But, alas, Phooey. Phooey and baloney.
In the first place, because the “genius of the Constitution” rested solidly upon the Framing Vision of an active and deliberative People governing the government. Like a vaudeville magic-act, Brennan – and he is hardly alone in this – distracts attention from the real action and displaces it onto a secondary McGuffin (Hitchcock’s favorite concept). Because it is not primarily a matter of the text of the Constitution (although that is indeed vital), but rather of the role of The People in determining just where matters of profound national interest are going to go.
In the second place, because while the world of the 18th century is indeed “dead and gone” , which is an eery echo of that favorite radical-feminist cackle “It’s not your grandfather’s … (fill in the blank: Constitution, society, culture, military, economy, Productivity, or what-have-you)”, yet if the Framing Vision of the role of The People is also “quaint” and deserves to be kicked to the curb because that Vision itself is dead and gone and because that Vision ‘just doesn’t get it’, then what are the prospects for sustaining the “American experiment in democracy” that Driver and Brennan so piously praise?
In the third place, because the “principles” mean squat if the soil provided by the Framing Vision is poisoned. You can’t expect to grow world-class prize-winning roses if the soil in your garden has been lethally contaminated.
And in the fourth place, “current problems and current needs” is treacherous verbiage on so many levels. It is code for the current problems and needs of the Democrats in 1972 and ever since; it veers perilously close to the rejection of the genuine dynamics expressed by those verbal principles whenever enough emotion (or behind-the-scenes power and skullduggery) are marshaled to neutralize those dynamics. It is the dynamics themselves, and not their subsequent verbal formulation in ‘principles’, which are the indispensable life-sustaining fonts of the American Experiment and the Shape of this polity as a democratic and Constitutional Republic.
Thus again, to squeak praises of Brennan’s “robust defense of the law’s evolution” is utterly beside the point. A law that is changing because its core dynamics have been and are being undermined is not e-volving, it is de-volving (and I mean that in the worst sense of the word).
Thus ditto when Driver bravely praises Brennan’s embrace of the idea that “courts have a creative job to do when they find that a rule has lost its touch with reality and should be abandoned or reformulated to meet new conditions and new moral values”.
Once again, Phooey and Baloney. This is nothing more than the old vaudeville magician distraction at work.
In the first place, because what is at issue here is not a ‘rule’ (should there still be a one-way on Washington Avenue now that it’s become a major shopping artery?) but the very fundaments of democratic process and the Shape of the culture, the society, and the polity itself.
In the second place, because a great deal rests on just what you define as “reality”.
In the third place, because a very careful and gimlet-eyed assessment has to be made as to just what is involved in the definition and demands of “new conditions” and – good grief! – “new moral values”. This is profoundly vital and complex ground here – you don’t approach it with the breezy and cocky arrogance of a Boomer cutting classes to burn down the ROTC building.*****
And in the fourth place, what is really being conducted here is not ‘creative’ but de-creative process (‘destructive’ might seem a bit much rhetorically, although not factually – perhaps ‘deconstructive’ is apropos). Thus Brennan commits the Judiciary to a de-creative or deconstructive role, and on a lethally profound level. (And matters are not helped when his excesses ignite a counter-excess against his efforts, which simply reduces the Judiciary to an ongoing Punch-and-Judy show of whack and counter-whack.)
And in the fifth place, because if such huge challenges were truly afoot, then why not let The People deliberate upon such momentous (and potentially lethal) matters? And surely, if it is suggested that The People wouldn't agree with the liberals' 'solutions', then that fact alone should have given pause to any responsible major public figure. (But of course, the come-back prepared to cover that little problem was that The People ‘just didn’t get it’ – Brennan secured his place in American history by playing to that ominous peanut gallery with all the force and ingenuity his personal kazoo could muster.)
Rather amazingly, Driver admits that “today’s mainstream legal liberals would blanch in the face of such language … judicial creativity is out, judicial modesty is in”.
But of course. Unless you are prepared to establish the revolution by overt coup d’etat like Lenin, then you need to wrap your schemes in the cutesy and familiar swaddling clothes of more familiar concepts that won’t spook the herd when the script doesn’t call for a stampede. And nowadays ‘legal liberals’ would very much not like to be seen as ‘revolutionaries’ but would rather enjoy their golden years as the great wizards and wizardesses (‘witches’ doesn’t quite capture it here) of deep and serious and responsible legal wisdom. ******
But it’s all phooey and baloney.
At the heart of this entire scheme, to repeat, was not a matter of ‘creativity’ or ‘modesty’ but of outright usurpation of the role of The People and the undermining of genuine (and indispensable) democratic civic process in a gimlet-eyed determination to impose the New and the Good upon herds of lumpen-folk who ‘just didn’t get it’ (and – even more treacherously – probably wouldn’t decide in favor of it if they were given the chance, as they were – for what proved to be the last time – in the presidential election of 1972).
Now the agents of the revolution, mimicking the Soviet nomenklatura of the post-Stalinist age, would like to be seen as thoroughly respectable and mainstream. Phooey and baloney again. No more slouch caps and trench-coats and shifty, knowing glances among themselves. Now it’s expensive suits and dresses and shoes, tasteful homes, power-phones and personal communication devices, and a secure spot in the contact-lists of all departments of ‘The New York Times’. Feh.
Driver sounds an alarm. “More importantly”, such modern day legal liberals “may distance themselves from the Justice who has been most prominently associated with living constitutionalism”.
And so what? The damage has already been done. If anything, the public – or what’s left of it – might want to consider the old Medieval Catholic gambit of digging up the body and putting it on trial, just to make a point and air the true facts of what the body’s now-departed inhabitant had actually done when he was resident therein.
Driver sighs that nowadays “it would be difficult to imagine judicial nominees citing Brennan as an intellectual influence”. But of course.
In the first place, nobody wants to be seen as revealing the raw tooth-and-claw revolutionary origins of so much that now passes for legal Wisdom.
And in the second place, the failures and consequences and perhaps even the core treacheries of the revolution are becoming increasingly too clear to spin away with pious burbling or manic praise. Not even the ‘Times’ can spin it all away now, although its efforts to keep up appearances almost rival the heroic efforts of Pravda and Izvestia towards the end as the whole monstrous Thing started to reveal its true nature like the final scenes in ‘The Picture of Dorian Gray’.
And then Driver starts pulling out all the stops as he swings into his peroration. “The disembodied quality of Brennan’s legacy is regrettable because he, along with his allies, brought about some of the nation’s most treasured decisions in constitutional law”.
Curious – no? – that the accomplishments of such a declared paragon are yet only so vaguely adverted to by his follow-on cadres. While all of them want to admit off-the-record that he was an important figure, yet nobody really wants to be caught on-the-record describing what those accomplishments might actually be. Sort of like Stalin. And at least Mussolini can be remembered by die-hard admirers for having made the trains run on time (and for having sent in the army to eradicate the Mafia – though, alas, re-introduced by the Allies courtesy of J. Edgar Hoover’s ‘Italian-American contacts’ in 1943).
But then, Driver gives the game away – bless him. “Brennan “helped to broaden the prevailing conception of the judiciary’s ability to address inequalities that resist political remedy”. [italics mine]
In other words, if The People can’t be trusted to do what elites want to see done, then the answer was not and is not to see what The People really think (why do that when The People ‘just don’t get it’?).
No. Instead you do an end-run around The People and get the judiciary to fluff their sober robes and get the job done that way. (In Gilbert & Sullivan’s phrasing, the corrupt old judge brazenly sings “It was managed by a job – and a good job too!”) Nor is it irrelevant that Brennan served as a military lawyer in WW2: in there he would have learned the military’s approach to law, which is: the Command Authority knows best, and the only Outcome of any ‘trial’ is going to be the one that Authority wants, and the military is not a democracy. Not the best experience for a highly susceptible and ambitious elitist looking to apply the law to a nation full of Citizens who ‘just don’t get it’.
And then, trying in conclusion to justify what he has just described, Driver nails the lid down on himself, Brennan, and the whole liberal legal aristocracy: “It is Brennan’s implicit resolution of the fundamental paradox of constitutional law that decisions contravening majority preference can nevertheless be democratizing”.
Good frakking grief. This isn’t a paradox; this was and is a treacherous abandonment of the Framing Vision and an even more treacherous betrayal of The People in order to accomplish a politically convenient agenda that you want to impose no matter what the cost.
This was no resolution. No more than it is a ‘resolution’ to throw somebody into deep water but then insist that he isn’t wet (and perhaps also drowning). This isn’t the resolution of a paradox (which by definition isn’t resolvable in the first place); it is the treacherous use of language to deny the reality of what you have done.
It should be a maxim of The People: beware of those who come bearing ‘solutions’ to paradoxes.
This was a solution of achieving an illicit agenda by simply undermining the constrictions that were holding you back. Precisely the gambit of any gangster or criminal who gets what s/he wants simply by removing the constrictions of law (or ‘morality’) from the calculations and forging ahead.
The People and the Framing Vision were in the way, so you just write them off (after all, they ‘just don’t get it’ anyway) and do whatever it takes to achieve the purposes you seek. This is a pretty good example of the dynamics of committing a crime.
Some Justice. Some Justice.
*Online access to this article is blocked by a paywall; access is for ‘The New Republic’ subscribers only. However the article originally appeared in the print edition of that magazine, in the February 17, 2011 issue, pages 36-9. It is entitled “Robust and Wide-Open” and its author is Justin Driver, who is reviewing a book about Brennan entitled “Justice Brennan: Liberal Champion”, by Seth Stern and Stephen Wermiel. I shall deal with Driver’s comments in his review, and not the text of the book itself.
**I can heartily recommend Michael Okrent’s recent book “Last Call”, a splendid legal, political, social and cultural history of Prohibition, premised on the candid and vital question: “How the hell did it happen?”. Ken Burns has also released his own fine video history of Prohibition, shown on PBS.
***Nor am I here implying an encomium to Richard Nixon. But I will point out that in light of what We now know of LBJ’s treachery (trying to use the highly dubious August 1964 Gulf of Tonkin ‘incident’ as a new Pearl Harbor to lubricate the rush into the Vietnam War; suppressing any US Navy defensive response to the ruthless and unprecedented June 1967 attack on the USS Liberty and the machine-gunning of its wounded sailors in lifeboats by naval and air units of the Israeli realm and then instructing the high-ranking Navy lawyers to ensure that the subsequent inquiry did not "embarrass our Israeli ‘frens’" (who do not have and never have had and have constantly avoided signing any treaty of alliance with the US); and allowing American supplies of fissile nuclear material to become ‘lost’ and end up in Israel, thus reversing Eisenhower’s and especially JFK’s adamant rejection of Israel’s efforts to become a nuclear-armed power and consequently introducing nuclear weapons into the frakkulent Middle Eastern situation) … compared to all of this, Nixon’s shady skullduggery in breaking into the Watergate offices in June 1972 (a gambit that had been tried in the Nixon-Kennedy election campaign of 1960 to get demonstrable proof that Kennedy had serious medical problems) assumes the proportions of almost garden-variety political shenanigans.
****I can’t help relating this choice bit. In the very early 1930s, realizing that the Prohibition strongly embraced by Progressive elites, fundamentalist religious elements, and the hugely engorged organized crime bosses (all “sisters under the skin”, in Kipling’s fine and vivid phrase) was in danger of being repealed, Alphonse Capone, that noted Chicago entrepreneur, began investigating diversification of his interests. In addition to expanding into dry-cleaning inter alia, Mr. Capone stumbled upon milk – which, he discovered to his amazement, enjoyed a higher mark-up than bootleg liquor. “We’ve been in the wrong racket all along!” he exclaimed to his associates and underlings around the mahogany table.
I envision the same type of meetings being held in various tax-funded mahogany meeting rooms around the Beltway after 1972. And the same exclamation being made about genuine democratic process.
And while repeal of Prohibition probably saved the American dairy-cow herds from a rather unpleasant ‘organization’, yet no such happy outcome has materialized for The People, who have been ‘organized’ (Hitler’s favorite phrase was Gleichschaltung – brought into conformity) into those B-Western cattle herds that inhabit the background of the real action of the plot.
*****And thus let me here refine a thought I have often expressed on this site: while the Boomers provided the fuel and generated the emotional waves, it was an older generation then in power that sought to surf those tricky waves generated by Boomer enthusiasm that spear-headed the whackulence of the past 40 Biblical years.
******I think it was the historical novelist Caleb Crain, a few decades ago – but I might be remembering the source incorrectly – who noted in one of his New-York-in-the-1880s books that one effect of the Comstock Laws of that era, which greatly prohibited brothels, was to drive the very wealthy madams who ran the brothels out of New York City proper. Whence they promptly decamped to Long Island where they became the establishing generation of a number of 20th century respectable Long Island fortunes and families of great social stature. One is reminded of Balzac's observation that "behind every great fortune there is a crime".
In personal conversation with a reader I received a few thoughts about this Post and a couple more ideas flow from that encounter.
To the possibility that the ideas in my Post merely mask a harrumph (or worse) regarding all the ‘progress’ of the past 40 years, I would respond as follows.
It is a matter of which end of the telescope you are looking through. What I am saying is that from the get-go the post-1965 ‘liberal’ revolution was lethally and probably fatally flawed because of its Method.
As evidenced in Driver’s final comments about using the courts because there was no acceptable (to the Democrats) ‘solution’ to the problem of quickly effecting the changes to the national culture and society that were necessary to woo their suddenly-created Identities and their advocacies: the Citizenry were not going to accept all of that quickly and without reservation, so the democratic political process had to be sidestepped.
To do that the later-60s Black-Power revolutionaries’ violent and in-your-face rejection of democratic process was too obvious and heavy-handed.
However the radical-feminist advocacies had almost overnight shrewdly amassed piles and piles of ‘philosophical thinking’ which they got primarily by taking Marxist and Leninist writing (there are literally tons of the stuff) and more or less simply substituting ‘women’ for ‘proletariat’ – providing an instant corpus, consisting of thousands of closely-printed if turgid pages of ready-made ‘justifications’, for doing here precisely what Lenin had always insisted on doing: avoiding ‘reform’ and ‘democracy’ and going straight for an imposed revolution by the ‘vanguard elites’ who were the only ones who really did ‘get it’. (See Addendum 2 below.)
Ditto the tiersmondiste thinkers – French but also German and Central European – of the immediate postwar era who had either had a bellyful of totalitarian and government-heavy thinking and wanted to undermine all government and traditional public authority (this would work marvelously for undermining American culture and tradition) or else wanted to bypass government and simply reject all ‘established’ authority and ‘hierarchy’ and 'tradition' and 'common sense' (which would work marvelously toward ‘deconstructing’ anything ‘established’ – by, of course, the utterly evil and useless dead white European males and sustained by the lumpen-herds of those who ‘just don’t get it’).
I am saying that before even considering the Content of the various demands that the advocacies made under this pretextual smokescreen in the late 1960s and 1970s, it was the very Method of profoundly and deliberately anti-democratic process that was the fatal bug built into the very foundations of the whole gambit. And that it is this plague-bug which is now metastasized throughout the nation’s entire political system.
And thus of course the Democrats committed themselves and the Beltway (the Republicans soon saw how it could work for their own favored constituencies and so the frak became ‘bipartisan’ by the mid-1970s) and the country to a profoundly anti-democratic dynamic. (Ironically, by the time the actual original embodiment of Marxist-Leninist thought, the USSR, collapsed in 1991, the anti-democratic dynamics at the dark beating heart of the Thing were already well-established in the Beltway. Funny how the deep-political night moves.)
As an aside, I can’t see how the Democrats can now provide a political home for both the radical Identity-Politics ‘bases’ – whose elites helped introduce the plague of anti-democratic process into the nation’s political bloodstream and rely on its continuation for their own ‘success’ – and the populist desire for an end to ‘big government’ or, as the more refined thinking among them goes, a government engorged wayyyy beyond its proper boundaries.
My take on that is that you can expand the government’s scope as much as you think is necessary, so long as the utterly indispensable and uniquely American Framing Vision is respected: i.e. The People absolutely must have their full say in what is going to happen, and that consensus (rather than any non-smoking, smoke-filled room ‘deals’ among the ‘players’ at the Beltway tables) must be given utter and absolute primacy.
The People are the governors of the government, not its lumpen, wayward, helpless, victim-prone, passive ‘children’; nor is the President their ‘commander-in-chief’ ... he is their damned employee and if any folks need an idol or a walking-talking official teddy-bear then they can go to the dealer’s and buy one, but they cannot remain faithful and responsible to their responsibilities as Citizens by turning the Executive into one.
This of course is now and always has been gall and wormwood to both the Left ‘vanguard elites’ and the Right corporate elites and the Fox-or-Jeezuzz-addled patriotistic flag-wavers; and the pols are now so indentured (permit me to intensify that: enwhored) to these elites and 'bases' of both Left and Right that it seems greatly uncertain whether the sitting political class is capable of restoring the primacy of The People at all.
It is in this context that I view Brennan’s efforts and Driver’s remarkably useful revelation of Correct thinking: the courts must do whatever must be done when the elites’ desired agendas “resist political remedy”, i.e. when The People aren’t largely convinced that the agendas are good for the commonweal or at least can’t all be introduced in one quick sweep of terra-forming government imposition that will probably derange if not destabilize the entire foundational and under-pinning structures of culture and society.
Brennan’s efforts did not help ‘politicize’ the Court and the entire Judiciary – that is too mild and actually distracting a word.
Rather, Brennan’s efforts committed the Court and the entire Judiciary to collaboration with the treacherous anti-democratic dynamics that had been set loose by the pandering Legislative and Executive Branches, against which ideally the Judiciary would have been the last firewall, committed to retaining the integrity of the Framing Vision’s absolute insistence upon the dynamics of genuine democratic process.
That is his legacy, and that will be the most lasting legacy of post-1965 ‘liberalism’ in regard to the Great American Experiment: they undermined its fundamental dynamics, like a collection of Sorcerer’s Apprentices who unleash all Hell, and worse – a Hell from which the Framing Vision had most carefully and strenuously raised the country at its very inception.
If this doesn’t rise through callow and arrogant imbecility to actual treachery and infamy, I don’t know what does.
I offer this entry from the Stanford Encyclopedia of Philosophy in regard to feminist political theory to indicate just to what extent most feminist philosophical thinking is opposed to “deliberative democratic process” in way or another, for one reason or another.
Whether that thinking embraces a “Maternal” approach (modeled on Carol Gilligan’s idea of Mommy At the Breakfast Table, with government being the Mommy and the Citizenry being the squalling kiddies) or an oppositional approach of one kind or another (that doesn’t trust deliberative democracy to provide the desired outcomes for feminist theory), the point is that the dynamics of deliberative democratic process are not and have not ever been well-received by the feminist agenda which – as I have said in the essay – was embraced by the Dems after 1972 and by the Republicans later in the decade for their own purposes.
I also offer this link from Wiki in regard to Antonio Gramsci, the early-20th century Italian Communist thinker who took aspects of Marx’s and Lenin’s thought to develop his theory of “cultural hegemony”. Gramsci called for the undermining of a culture’s established traditions and institutions by means of the working class (changed to ‘women’ for feminist purposes) first developing its own culture and then forming a “historic bloc” by making whatever (temporary) alliances and compromises (again temporary) in order to take over the core institutions of a targeted culture and then subverting it to Marxism-Leninism (or feminism, as it were) from within. You can see where Justice Brennan’s tactical machinations played right into this strategy; thus – you should pardon the image – enabling the Court and the Beltway to lead the country into political and cultural catastrophe pretty much the way Custer led his elements of the Seventh into the valley of the Little Big Horn.
So, what I am saying – and not in any shallow ‘gotcha’type of way but as a profoundly serious maxim for conducting analysis – is that any study of American politics of the past 40-plus years must take into consideration the admittedly shocking reality that American politics are now and in no small way an actual historical demonstration of a political embodiment of Leninist political thought, since ‘feminist political thought’ (as embraced, enabled, and raised to powerful influence by the US government itself) relies at its very core on Leninist and Communist thought and praxis (either directly or through such writers as Gramsci). The quintessential Communist "class struggle" has simply been re-badged here as the "gender struggle", but all the classic and vital dynamics remain the same.
In this sense, the history of the US becomes a chapter in the sorry history of Communist thought and praxis. And it is nothing short of self-delusion, individual or collective, for American ‘thought’ to wish this stunning frakkulence away by either denying it (it couldn’t happen here!) or insisting that somehow any generalities that have possibly been imported from Leninist thought and praxis would be magically purified through the filters of American exceptionalism or the ‘good intentions’ of those who imported such plague-bacillus and force-fed it into the national political bloodstream.
Worse, it seems to me that if radical-feminism was and from its earliest stages has been committed to a Leninist-Gramscian revolutionary Project, seeking neither rational intellectual debate nor deliberative democratic process, then the American democratic system and Vision was a sitting duck from the get-go.
To approach so determinedly anti-democratic a Project with the intent to parlay and deliberate with it reasonably with an eye to working out some prudent and mutually acceptable compromise arrangement could resemble and repeat nothing so much as Chamberlain’s efforts to do the same when faced with the lethally vital and determined aggressive powers confronting the West in the 1930s.
This is so not, in the first place, because of the Content of the demands issued to American society and culture by radical-feminism. Rather, first and foremost because of the Method already embraced by radical-feminism: i.e., the revolutionary Project that did not seek or intend any deliberation whatsoever, but rather ultimately to undermine the ‘hegemonic’ American culture for its own purposes.
To approach this Project as if it were simply an opportunity for honest democratic discussion was tantamount not only to your bringing a knife to a gunfight, but a gunfight whose specific purpose was your own undoing.
But of course, the ‘revolutionary’ talk brayed by the radical-feminists in the early 1970s, coming so soon after the hyperbole of the Boomery 1960s, seemed merely more youthy exaggeration. But it was not. It was in deadly earnest.
The radical-feminist Plan was not so much a continuation of Boomer excitements (flower children and hippies never really ‘planned’ stuff) as it was the calculated and deliberate introduction of Leninist thought from that verrrry Alien Universe. And the Dems led the Beltway into collaborating with it, and turning over the full faith and credit and force of the government. And the Dems, desperate for the demographic advantages offered by an embrace of ‘women’s issues’ (as defined and claimed and represented by radical-feminism), could not afford to allow such an opportunity to pass them by merely for the sake of honestly calling the Thing what it was. So they called it all ‘liberal’ and burbled it was all merely ‘reform in the service of rights’ – sort of a simply quickie follow-on to the first phase of the civil-rights movement, that culminated so well in the summer of 1965 with the passage of the Voting Rights Act.
If the American political system seems to have stopped working, then before making fun of the Framers or losing trust in their Vision, consider what stupendous pressures have been placed upon it for the past Biblical 40 years: it has been assaulted from within, and with the vigorous support of the very government whose officials and elected representatives were sworn to protect it, by what is and always has been at its very core a Leninist revolutionary Project.
If the great ship seems to be sinking, it’s not because it is old or poorly built, but rather because its own guardians have been ripping it apart from the inside for decades now, allowing the lethally anti-democratic explosives of Leninist revolutionary praxis to be planted in all the vital internal locations and detonated by agents of a Project that precisely did not have and never had the best interests of a common-weal sustained by ‘deliberative democratic process’ as its objective.
In which case the Questions facing Us now are: has the ship been damaged beyond repair? And is there enough political will left in the polity and among the Citizenry to conduct the necessary repairs?
I imagine that a Correct come-back to what I have been saying – and what the links in the two preceding Addenda indicate – is that everybody is entitled to his/her own ‘opinion’ about how the Framing Vision or the country nowadays is supposed to work.
In which case I would immediately respond with the image I used most recently in some of the Eagleton Posts: the cargo-cult native of a remote Pacific island in WW2 who one morning suddenly discovers on the beach a brand-new Army staff car that has been (perhaps mistakenly) dropped off in the middle of the night with the keys and a full tank of gas but no owners-manual.
There may be different ‘opinions’ among the tribe as to the purpose of the shiny big thing: a strange type of hut, a planter, even an exotic form of out-house.
But there is really only one way this curious gift can actually work. Any other use, while within the ‘rights’ of the tribe, will fail to harness the full benefits because any other such use will fail to grasp the operating dynamics and purpose and thus the full potentials of the vehicle.
The Framing Vision and the Constitution – absent the indispensable ‘deliberative civic and public process conducted consistently by a fully-informed and competent Citizenry – cannot work properly and to full potential. And this country, this Great Experiment, this greatest gift and hope to humankind, will remain simply a glorified planter or out-house, with clueless natives, no matter how well-intentioned, pouring water or other stuff into it ad infinitum.
For that matter, let me offer this thought: It has become fashionable to lubricate the gyrations of the past 40 years by insisting, as do the university literature departments where so much of this Theory officially resides, that the Constitution should be approached just like any work of fiction. That is to say, while the author had a point or points to make, the reader – even centuries later – may consider his/her own take on the work to override the author’s intentions. This approach has had vast consequences in political thought and legal praxis here over the past few decades.
But suppose that one looks at the Constitution not as a work of fiction but as an instruction-manual or an owner’s manual. Just how much weight do you then want to give to the ‘subjective’ thoughts, feelings, responses, and musings ginned up by this or that reader?
Would you really want to trust a contractor who tells you that while the blueprints are clear, he sorta feels it would be groovy to try something else? Would you want to fly an airline whose maintenance crews treated the manufacturer’s manuals as merely ‘texts’ about which the mechanic, as reader, might agree with or disagree with? How ‘creative’ do you want your airline mechanics to get with the ‘text’ of the maintenance and repair manuals? How much does the mechanics’ ‘subjectivity’ enter into it?
Labels: American constitutional dynamics, court activism, Justice William Brennan, legal liberals, living constiutionalism, originalism, the Framing Vision, the role of The People