The Brief against Brandeis (reprise)

There is no denying that the long-lived Louis D. Brandeis (1856-1941) was an American treasure. The son of Eastern European Jewish immigrants, he graduated at age 20 with the highest GPA in the history of Harvard Law School. He made his reputation as a Progressive lawyer and as a leader of the worldwide Zionist movement. In 1916, he was nominated for a seat on the United States Supreme Court by President Woodrow Wilson.

The definitive biography of Justice Brandeis was published by Pantheon in 2008. The work of Melvin I. Urofsky of Virginia Commonwealth University, the 955-page tome is getting rave reviews. One, written by Anthony Lewis, appeared in The New York Review of Books. Brandeis, according to Lewis,

was intensely interested in facts. His law clerks did research on facts as much as law. When the Court considered a case on presidential appointment power that involved the 1867 Tenure of Office Act, Brandeis had his law clerk, James M. Landis (who became the dean of Harvard Law School), go over the Senate journals of 1867 to see what the views of the times were. Landis spent months in the Library of Congress reading the journals page by page.

Brandeis even tried to get Justice Holmes, who read philosophy in the original Greek, to take more interest in facts. He urged Holmes to spend the summer break reading up on working conditions and visiting the textile mills in Lawrence, Massachusetts. A year later Holmes wrote Harold Laski that “in consideration of my age and moral infirmities, [Brandeis] absolved me from facts for the vacation and allowed me my customary sport with ideas.”

Brandeis’s obsession with facts continues to reverberate through American law and politics. Consider, for example, what Wikipedia has to say about the term “Brandeis brief,” which refers to

a pioneering legal brief that was the first in United States legal history to rely not on pure legal theory, but also on analysis of factual data. It is named after the litigator Louis Brandeis, who collected empirical data from hundreds of sources in the 1908 case Muller v. Oregon. The Brandeis Brief changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations in cases affecting the health or welfare of classes of individuals. This model was later successfully used in Brown v. Board of Education to demonstrate the harmful psychological effects of segregated education on African-American children.

This week members of the Fall 2010 class of Glenn Fellows are reading essays and court cases organized around the theme of fact-finding and its jurisprudential consequences. As they read these materials, my hope is that they will perform a little thought experiment by asking themselves about the facts that the Court recognized in Muller, Brown, and Roe v. Wade, and whether it would have been wiser for the Court to base its rulings on strictly legal grounds, rather than conducting fact-finding expeditions.

In Brown, for example, the Supreme Court had the option of resurrecting Justice Harlan’s stirring dissent in Plessy v. Ferguson, which would have meant striking down school segregation on the grounds that “our constitution is color-blind,” rather than on the less substantial grounds that segregated schools inflict psychological damage upon African-American children. Likewise, in Roe v. Wade, there were a number of precedents that the Court, rather than wrestling with the question of fetal viability and formulating a national “right of privacy,” might have used to finesse the issue of abortion by declaring that public health is a matter that the Constitution, through the Tenth Amendment, reserves to the states. I hope the Fellows will ask themselves, in short, whether the Brandeis brief, so well intentioned, has inflicted a great deal of legal and political harm in the century since Muller v. Oregon.

October 25, 2010, update: As if on cue, The New York Review of Books has published an insightful review by Jonathan Zimmerman of Martha Minow's new book, In Brown's Wake: Legacies of America's Educational Landmark (Oxford University Press). Toward the end, Zimmerman observes, "Live by the social science, die by the social science." It could be Justice Brandeis's epitaph.

Is the British Parliament Broken?

This week the Glenn Fellows are reading Mann and Ornstein's The Broken Branch, an indictment of both houses of Congress on a number of different grounds, among which are excess deference to and minimal oversight of the executive branch.

The U.S. Constitution separates the legislative and executive branches of government. The British Constitution, in contrast, fuses them together. I think it was shrewd Walter Bagehot who referred to the cabinet as the buckle that fastens, the hyphen that joins, the executive and legislative powers in Great Britain. One of the consequences of that is that it is fairly easy for new governments to implement new policies, citing their electoral mandate and exploiting the advantage of a parliamentary majority.

The freshly minted coalition of Conservatives and New Democrats that recently threw out Gordon Brown and New Labour has now announced its program to attack deficit spending in Great Britain. (That's British Chancellor George Osborne, above, unveiling the government's plan. He is flanked by Prime Minister David Cameron, in the purple Tory tie, and Deputy Prime Minister Nick Clegg, with his yellow New Dem tie.) Here is a story in The Economist. And here is Andrew Sullivan's typically idiosyncratic take in the Daily Dish.

Implementation of the program will put Keynesian propositions to a systematic test and will likely usher in a new age of austerity, at least over the short run. Most assuredly, other countries, especially those, like the United States, where deficits are staggeringly high in relation to Gross Domestic Product, will be watching closely. Pull yourself a pint and pass the Spam.

Richard Holbrooke and the Clash of Civilizations

Talks are being held in Rome to chart a common strategy for mapping the future of Afghanistan. In addition to the United States and NATO, participants have included delegations from Afghanistan's neighbors. According to Karen DeYoung in today's Post , participants in these talks now include diplomats from Iran. Richard C. Holbrooke, the Obama administration's special envoy to Pakistan and Afghanistan, asserts that the participation of diplomats from a number of Muslim countries constitutes "a living refutation of the clash of civilizations" thesis advanced by the Harvard political scientist Samuel P. Huntington and warmly endorsed by many Muslim extremists. We'll be reading an excerpt in the Shafritz reader later this quarter. That's Professor Huntington with the glasses and natty tweed jacket. He died in 2008 at age 81. And that's Ambassador Holbrooke in the gray flannel State Department suit.

Philip Kennicott on Andrea Palladio

At the beginning of the quarter I posted a piece on the Palladio exhibit at the National Building Museum.

In today's Post, Philip Kennicott weighs in with his views on Palladio, which are charateristically subversive of conventional wisdom, verging on mean-spirited, and yet eloquently expressed and not unpersuasive.

Climate Change and EPA

The Fall 2010 class of John Glenn Fellows recently read Andrew E. Dessler and Edward A. Parson's The Science and Politics of Global Climate Change (Cambridge: Cambridge University Press, 2006), a book that I have been assigning since last year, when Congress appeared on the verge of adopting some version of the Waxman-Markey bill. That proved a chimera, of course, and now, as Robin Bravender explains in Politico, it devolves to the Environmental Protection Agency to do what it can to slow down the pace of global climate change by regulating greenhouse gases.

Bravender's is a pretty good account of the "iron triangle" of Congressional committees, bureaucrats, and industry lobbyists that sees to it that change occurs incrementally in our pluralistic system.

Why There is No Socialism in America (a reposting from January 24, 2010

In a lecture recently reprinted by The New York Review of Books, Tony Judt of New York University tells us that this query—why is there no socialism in America?—was posed a century ago by a German sociologist, Werner Sombart. The question remains pertinent, for reasons that I try to explain below, despite the enactment of a great deal of “social democratic” legislation in the course of the twentieth century.

Judt’s lecture explores some of the many answers that have been formulated in response to Sombart’s question. I was surprised, however, that Judt never mentions Louis Hartz, a political philosopher with an original take on American political history that he published during the McCarthy Era as The Liberal Tradition in America (New York: Harcourt, 1955).

Somewhat surprisingly, Hartz’s answer boils down to this: there can be no genuine socialism in America because there was never any genuine conservatism here. And we have no conservatives because in the New World there was no Old Order to conserve. Early settlers came to the British colonies in North America in an effort to get away from vestiges of feudalism (primogeniture, for example) that retained their oppressive potency in Europe. We Americans are the descendents of religious dissenters and others who voted with their feet against the Old Order. The deal was sealed when our few remaining Tories, aristocrats, and monarchists escaped, or were chased, to Canada after the American Revolution.

Canada, in fact, proves Hartz’s point. Even today there are a few honest-to-God Tories, and roughly the same number of authentic socialists in Canada, and neither feels obliged to offer apologies for itself. The result, to take just one example, is that the Canadians were able to create something akin to socialized medicine; it couldn’t be rejected, as it has been in the U.S., as part of a wholly alien tradition.

In the United States, by contrast, liberalism (think John Locke, for whom society is “atomistic,” i.e., the sum of its individual parts) is the only tradition we have. Some American liberals may be inclined to promote equality, even at the expense of personal liberty; Hartz calls them “liberal democrats.” Others may favor liberty over equality; Hartz calls them “liberal whigs.” We have neither a Far Right reminiscing about an organic, corporate order dominated by a benign and paternalistic gentry, nor a Far Left intent on overthrowing bourgeois capitalism and replacing it with a collectivist Social Welfare state (i.e., a Workers’ Paradise). The good news is that, there is nothing in our tradition for fascism to feed on. Never mind all the dire warnings about indigenous fascism that have been issued by the Far Left; the closest we’ve ever come was Father Coughlin in the 1930s, and that wasn’t very close. BTW, that's Ben Shahn's image of Father Coughlin with his Hitlerian fist pump up top.

The result, according to Hartz, is that American politics oscillates between the two “extremes” of liberal democracy and liberal whiggery, which aren’t extreme at all, but variations on the same theme. Thus, it is very much in the Hartzian tradition for Judt to pose the following musical question about American politics: “Why is it that here in the United States we have such difficulty even imagining a different sort of society from the one whose dysfunctions and inequalities trouble us so?” It’s because our liberal tradition is so capacious it makes everything else seem beyond the pale.

In the United States, the liberal democrats (i.e., people like Judt) have traditionally had the stronger hand. This is because they (unlike, say, the author of Federalist No. 10) have no real reservations about majority rule, and they know how to appeal to majoritarian instincts, some of which are not very honorable (e.g., the abolition of debts). Liberal whigs (e.g., today’s Republicans) have a harder time of it, because if they articulate their principles clearly they run the risk of offending the many who stand to profit from “majority tyranny.” Still, the liberal whigs are able to compete by planting seeds of fear and doubt in the American democrat. Conjuring up the “rags to riches” fantasy (e.g., Andrew Carnegie’s “gospel of wealth”) allows the American right, such as it is, to enjoy what Hartz called the Great Law of Whig Compensation, by which he meant that for the death of Hamilton (and genuine Toryism) they get the perpetual triumph of McKinley (an Ohioan, of course). You take what you can get. Come to think of it, Hartz himself was born in Youngstown, the son of Russian Jewish immigrants.

Still with me? Hang on, there’s just a bit more. Implicit in Hartz’s description of a consensual and monotonous liberal order is the idea that the parameters of American political discourse are unusually narrow. Tony Judt is on exactly the same page when he says, apologizing for the academic jargon, that the great shortcoming of American politics is discursive. One of the effects of that is that the stakes of American politics are fairly low, though politicians do everything they can to try to make them seem much higher.

Some will note that the U.S. has had its collectivist moments: the Progressive movement at the turn of the twentieth century; the New Deal during the Great Depression; Lyndon Johnson’s Great Society. And that is true, though each was more of an improvisation than part of a Grand Design, which explains why American institutions differ so markedly from their European counterparts. During our spasms of Social Democracy (to use Judt’s term) in the 1900s, the ‘30s, and the ‘60s, we were trying to solve practical problems. We were “muddling through”; we had no wish to create a Brave New World. From the days of Benjamin Franklin at least Americans have been practical-minded empiricists (the Branch method, rather than the Root), not theoreticians.

What Judt has to say at the very end of his lecture is extremely interesting. He is clearly disgusted with the American left for not recognizing that it “has something to conserve,” i.e., the collectivist, social democratic heritage of the twentieth century. He notes that the left often seems intent on apologizing for its own legacy. Judt also criticizes the left for not recognizing that the right (thanks largely to George W. Bush, though he doesn’t say that in so many words) has put itself in the awkward position of advocating utopian ideas such as not worrying about budget deficits (“Deficits don’t matter,” according to Dick Cheney) and “making the world safe for democracy.” The right, according to Judt, “has inherited the ambitious modernist urge to destroy and innovate in the name of a universal project.” They ought to feel more uncomfortable in that position than they seem to be.

This, in my view, is astounding, especially when one considers that (quoting Judt again, but now with a bow in the direction of Charles Lindblom) “If we learned nothing else from the twentieth century, we should at least have grasped that the more perfect the answer, the more terrifying its consequences.” (Consider, for example, Hitler’s answer to “the Jewish question,” or Stalin’s answer to the challenge posed by kulaks, whose very existence refuted Marxist ideology.) Yes, what we have here is another argument for muddling through.

Oops. $1 Billion SNAFU in Alexandria

This office building, not far from where I live, is supposed to accommodate 6,400 Defense Department employees, though it seems no one gave serious thought to the impact it would have on the local transportation network. The building is a creature of the 2005 Base Realignment and Close Commission. Read Andy Medici's story in the Federal Times.

Rationality and Public Policy Making: A Reposting

What follows is a slightly updated version of a post originally published on September 29, 2009.

It's week 3, which means it must be time to take another close look at Eugene Bardach's A Practical Guide for Policy Analysis, a book that has always struck me as a kind of Rorschach test. While Bardach recognizes that policy analysis is "more art than science," he is, ultimately, an optimist. He thinks that public policy is improved when it is informed by rigorous empirical research. As a dyed-in-the-wool futilitarian, the Washington Buckeye is less sanguine about the prospects of rationality in the policy-making process.

The October 8, 2009, issue of the New York Review of Books has a remarkable article that bears on the issue: "The Anarchy of Success," by William Easterly, an economics professor at NYU. The article is a review of two new books, Leonard Mlodinow's The Drunkard's Walk: How Randomness Rules Our Lives, and Ha-Joon Chang's Bad Samaritans: The Myth of Free Trade and the Secret History of Capitalism. Unfortunately, the NYROB won't let me attach a link to Easterly's article because it is premium content.

So here's the nub of the argument. Easterly says that the phenomenal rates of economic growth enjoyed by Hong Kong, South Korea, Singapore (see skyline photo above), and Taiwan in the period between 1960 and 2007 inspired a tsunami of research by economists eager "to find in the empirical data which factors reliably lead to growth. Yet hundreds of research articles later, we wound up at a surprising end point: we don't know."

Think of it. After the investment of billions and billions of dollars and Euros in the righteous cause of economic development, we actually don't know the causes of growth. According to Easterly, summarizing Mlodinow, economists have identified 145 factors associated with growth, but "most of the patterns were spurious, because they failed to hold up when other researchers tried to replicate them." As for Bad Samaritans, Easterly says that Chang criticizes "those who have made overly strong claims for free trade and orthodox capitalism, but then he turns around and makes equally strong claims for protectionism and what he calls 'heterodox' capitalism, which includes such features as government promotion of favored industries, state-owned enterprises, and heavy regulation of foreign direct investment."

Could it be that "the science of muddling through" is the best we can do?

The Gargoyle Shot

Fall 2010 Glenn Fellows at the Library of Congress. Left to right: Chandra Caldwell, Kevin Ruppert, Justin Canfil, Alex Petrucci, Sara Hinds, Christina Buckler, Claire Racine, Lindsey Wilson, Kyle Everett, Brock Hutchison, Theresa Brenner, Nichole Hill, Katie Heffernan.