Monthly Archives: August 2015

Resurrecting Lochner


Besides a fabulous name, Rufus Peckham is remembered in American jurisprudence for penning one of the most notorious decisions in the era between Reconstruction and the New Deal. Lochner v. New York invalided state laws regulating maximum hour laws. Something called “liberty of contract” existed in what William O. Douglas would later (in)famously call the penumbras and emanations of the Fourteenth Amendment: SCOTUS assumed for the purposes of law that labor and management as equal partners could negotiate without governmental interference. Besides, bakers have it better than most, according to Peckham: “The average bakery of the present day is well ventilated, comfortable both summer and winter, and always sweet smelling.” Justice Oliver Wendell Holmes, Jr., not known for protecting those unblessed by destiny and birth, threw up his hands and wrote the most famous dissent in Supreme Court history: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”

Many citizens still have trouble recognizing that an employee and its employer do not bargain on equal term. There is some truth to this dictum. If I don’t like my employer’s starting salary and job responsibilities, the employer is under no obligation to change them for my sake. However, the employer is required to follow minimum wage laws, maintain a drug free workplace, offer overtime and bathroom breaks, observe occupational safety standards, and so on. Until the New Deal, however, American businesses observed the Latin phrase known as caveat emptor — buyer beware. Worker beware.

Brian Beutler explains how young lawyers, unmoored from thirty years of post-Warren Court conservatism, define themselves as radicals. I’ve heard whispers about a Lochner revival since the publication of David E. Bernstein’s Rehabilitating Lochner, which I haven’t read. It continues:

To anyone who lived through Bush v. Gore it might seem strange that a judiciary as conservative as the Rehnquist and Roberts Courts would rule for the government so regularly. But the dominant strain of conservative legal thought for the last half-century has largely been shaped by the right’s backlash to the social revolution stemming from the 1960s and the Warren and Burger Courts’ use of the Constitution to further progressive ends like desegregation and access to abortion. For conservatives, the main villain of the last 50 years has been creeping liberal judicial activism and a willingness to overturn legislative action. Conservative legal scholars and jurists like Robert Bork held that judges should refrain from projecting personal or political values into their judicial opinions. This principle became a cornerstone of traditional conservative legal thought, but it effectively created a presumption that democratically enacted laws are constitutional…

Lawyer Clark Nelly has other plans:

“Ten to 15 years ago, conservatives who were in positions of influence—educating young lawyers, or in a position to hire them to politically desirable positions—were unified by what you might call Borkian restraint, or knee-jerk deference,” Neily said. “What has really changed in the last four or five years is a real skepticism, particularly but not exclusively among young law students, toward this kind of acquiescence to whatever government does.”

The election of a black president named Barack Hussein Obama has not acted as a restraint on their efforts. The election of a Hillary Rodham Clinton or Jeb (!) Bush wouldn’t either, according to one of the firebrands:

Conservatives, Barnett said, “have to decide, ‘Well, why am I furious? What am I furious at? … They put John Roberts on the court. I didn’t put him on the court. Bill Clinton didn’t put him on the court. George Bush put him on the court, and he was considered by the Ted Cruzes of this world as a superstar, and then look what he does. There’s something wrong with this picture.”

There’s something wrong with this picture.

‘If my heart could do the thinking, will my head begin to feel?’ — Van Morrison remastered

It can’t have escaped the grouch’s notice that his seventieth birthday lands three days after his catalog gets digitized. I’m not much of a Van Morrison fan — I prefer Saint Dominic’s Preview and Tupelo Honey to the earlier classics when I remember I own them — but it took this kind of availability for me to immerse. The serenity of the eighties albums has a cumulative power; “Did Ye Get Healed,” the title track of A Sense of Wonder, and “Into the Garden” boast synth patches that shimmer like puddles on a forest floor (Brad Nelson, author of a beautiful reconsideration published a few months ago, came up with the sentence, “Synths and reverb are applied gently to these albums, on songs that are intended to have the gauzy depth of a pool, or a memory”). Roxy Music’s Avalon, particularly “Tara,” sounds like an inspiration: New Age without wind chimes.

The nineties stuff after Enlightenment is grittier, with Back On Top a delight years after its prominent placement in Barnes & Noble music sections fascinated me (i.e. who was buying new Van Morrison records in 1999?). I’m fond of “When The Leaves Come Falling Down” and the title track — has Morrison ever sung or written a poor title track? A Spotify playlist would include these tracks, plus “Hymns to the Silence,” “Ivory Tower,” “Days Like This,” a wee ingratiating thing called “Coney Island,” and the forgotten “I Forgot That Love Existed,” which asks the eternal question: “If my heart could do the thinking, will my head begin to feel?”

Jonah Goldberg in 2005: ‘I think it’s time to face facts’

Thank Digby for reminding me what my right wing confrères were writing ten years ago after Hurricane Katrina doomed New Orleans residents poor enough to watch their homes join the Gulf of Mexico:

ATTN: SUPERDOME RESIDENTS – I think it’s time to face facts. That place is going to be a Mad Max/thunderdome Waterworld/Lord of the Flies horror show within the next few hours. My advice is to prepare yourself now. Hoard weapons, grow gills and learn to communicate with serpents. While you’re working on that, find the biggest guy you can and when he’s not expecting it beat him senseless. Gather young fighters around you and tell the womenfolk you will feed and protect any female who agrees to participate without question in your plans to repopulate the earth with a race of gilled-supermen. It’s never too soon to be prepared.

Never one to miss a chance to sound the wrong note if it means he can sound tuff, Rich Lowry ‘s got his back:

Personally, I thought the Jonah Superdome riff was funny and clearly was poking fun at the media frenzy around Katrina at a time when it seemed especially over-blown.

Lowry, author of the moistest valentine ever penned to a putative political titan that he would never forgive from a liberal, is having a ball.

Readers know I link to NRO only when necessary. NRO itself, understandably, has buried the posts under a pile of dead links. Recall that this is the publication responsible for Barry Goldwater, resistance to the Voting Rights and Civil Rights acts, supporting Franco, and war at any time and at all costs unless a Democrat is in the White House and he (or she next November) is not committing the appropriate number of troops endorsed by the military officer or spook de jour.

Postscript: Today also marks ten years since I started reading NRO to substitute for the triglycerides and saturated fats I was no longer ingesting.

Safety in numbers: The Wolfpack

Few items have the cultural ubiquity of a Pulp Fiction DVD. The six Angulo brothers and one sister, homeschooled and kept as virtual prisoners in their Lower East Side apartment, have had little to no contact with the world but their list of favorite movies is no different and no less boring than what I’d find on IMDB lists or my students’ Letterboxed accounts. The Godfather. Gone with the Wind. Casablanca. As entertainment they dress as their favorite characters and do note perfect imitations of the “Stuck in the Middle with You” segment from Reservoir Dogs (the second brother, Narayana, who looks like a hawk-nosed Tom Cruise with a hurt gleam, does a good impression of Christian Bale’s absurd growl in The Dark Knight).

In Crystal Moselle’s documentary The Wolfpack, the Angulo siblings are receptive to the infinite gradations of each other’s movements; they’re like septuplets. During their playacting they evoke what we’ve learned about the Brontës, outcasts in the moors who peopled their fantasy world with an admixture of historical and fictional characters with a generous dollop of Walter Scott. The picture is one of the more touching depictions of how people can assemble bits of art and culture to nutritive and self-sustaining ends; the Angulos lives were saved not by rock and roll but by Tarantino.

The villain is their father Oscar, an earnest sort who babbles about how “we” are “victims of the circumstances of life.” Afraid of a hostile, dangerous world, Oscar confines their expeditions outside to nine or ten a year. Even mother Susana can’t leave without permission — he’s got the only house key. Dad, the oldest child Mukunda explains, is like a landowner — he doesn’t like socializing. But the experiment in social control crumbles when fifteen-year-old Mukunda steps out in January 2010. Moselle is good at capturing the subjectivity of the experience. How must Manhattan look to an adolescent whose knowledge of the city stops with YouTube clips? Eventually he and his brothers make it to Coney Island. Trains frighten them. On the shoreline they clop along in black pants and shoes like sullen Jehovah’s Witnesses. “It’s salty, man!” one of the Angulos shouts in disbelief on stripping and getting in the ocean.

But the documentary doesn’t know what to do with the Angulos after they’ve tasted liberty. A description of a police raid (Oscar had weapons, they claim) gets shunted off, although not before one of the Angulo kids compares it to Spike Lee’s Inside Man. And Moselle is so besotted with the children that she doesn’t limn the pathology of Oscar except to freeze him with quotes like the one cited above. Her reluctance to judge helps. Not once do the kids come off as freaks. This isn’t The Wild Child and Flowers in the Attic — the Angulos can use words intelligently (they even cook lasagna). One of The Wolfpack‘s subtler points is how the natural rhythms of the Angulos, formed by imitating people on the internet, aren’t necessarily advanced by contact with outsiders. However much scolds come down in 2015 on the atomizing effect of social media and Grindr, The Wolfpack shows that while the internet can only get you so far, it’s often far enough.

The Wolfpack is available on pay per view.

‘I thought I was doing everything right for you’

Working my way through the glitz and thud of Smokey Robinson’s eighties productions, I found this track from 1987’s One Heartbeat album. The home of “Just To See Her” also accommodated this narrative about a home wrecker: a father announces that he’s walking out on his family, to their astonishment. Then the situation repeats itself when the singer’s an adult — in reverse. “I just don’t know about love,” the author of “You Really Got a Hold On Me” and “Cruisin'” sighs. And it was a single.

Jimmy Carter and voting rights

Last week I took a stab at a James Earl Carter obituary. Rick Perlstein, who will presumably finish his trilogy about post-sixties Republicanism with the triumph of Ronald Reagan in 1980, concentrates on Carter’s lifelong interest in voting rights, a subject that his southern colleagues knew much about after Congress’ 1965 act pushed the most rebarbative among them into Strom Thurmond’s GOP. The result?

He asked Congress to allot up to $25 million in aid to states to help them comply, and for the current system of federal matching funds for presidential candidates to be expanded to congressional elections. He suggested reforming a loophole in the matching-fund law that disadvantaged candidates competing with rich opponents who funded their campaigns themselves, and revising the Hatch Act to allow federal employees “not in sensitive positions,” and when not on the job, the same rights of political participation as everyone else.

Finally, and most radically, he recommended that Congress adopt a constitutional amendment to do away with the Electoral College—under which, three times in our history (four times if you count George W. Bush 23 years later), a candidate who received fewer votes than his opponent went on to become president—in favor of popular election of presidents. It was one of the broadest political reform packages ever proposed.

It was immediately embraced. Legislators from both parties stood together at a news briefing to endorse all or part of it. Two Republican senators and two Republican representatives stepped forward to cosponsor the universal registration bill; William Brock, chairman of the Republican National Committee, called it “a Republican concept.” Senate Minority Leader Howard Baker announced his support, and suggested going even further: making election day a national holiday and keeping polls open 24 hours. House Minority Leader John Rhodes, a conservative disciple of Barry Goldwater, predicted it would pass “in substantially the same form with a lot of Republican support, including my own.”

A more perfect democracy. Who could find this controversial?

You guessed it: movement conservatives, who took their lessons about Democrats and “electoral reform” from Republican allegations that had Kennedy beating Nixon via votes received from the cemeteries of Chicago.

Ronald Reagan had been on this case for years. “Look at the potential for cheating,” he thundered in 1975, when Democrats proposed allowing citizens to register by postcard. “He can be John Doe in Berkeley, and J.F. Doe in the next county, all by saying he intends to live in both places … Yes, it takes a little work to be a voter; it takes some planning to get to the polls or send an absentee ballot … That’s a small price to pay for freedom.”

As James Murphy said, that’s where it starts. Chief Justice John Roberts cut his teeth in the Reagan White House as an assistant to the attorney general, specializing in sardonic memos in which he made clear that claimants must show “clear proof” of discrimination instead of “effects.” What concerned Roberts was “the most intrusive interference imaginable by federal courts into state and local processes.” Twenty-one years later, John Roberts wrote the majority opinion in Shelby County v. Holder, and Jimmy Carter is the worst president since Herbert Hoover.

Bare cupboards: H.W. Brands’ ‘Reagan’


As Republican super PACS prepare to Brylcreem candidates who babble about liberty and marauding Mexican invaders, yet another biography about the greatest leader in world history emerges from a reputable publishing house. But H.W. Brands, who distinguished himself with fine FDR and U.S. Grant bricks in 2008 and 2012, respectively, emerges no less stunned and stunted by the Sage of Dixon than Edmund Morris at century’s end did but quite a bit more hornswaggled. Pace, an absence of jargon, and scrutiny of the supporting cast keep Reagan lively. New facts are rare. One of those known facts concerns the fortieth president’s intellectual lassitude, unwillingness to question subordinates, and a fealty to communist-free plutocracy so thorough that he fell prey to every free market bozo, Central American caudillo, and paramilitary moron in Jim Baker’s appointment book. Brands’ own lassitude is almost as thorough.

Readers for whom the interaction of personages makes history will enjoy Reagan. Sentence for sentence this book has less whiz-bang and flaccid insights than Bob Woodward’s stenographic efforts. But Reagan synthesizes—it doesn’t analyze. Reading this biography saves one the trouble of perusing the memoirs of Alexander Haig, George Schultz, Robert McFarlane, and other figures, minor and major, whose tell-alls sink used bookstore shelves. Its focus on Reagan’s diaries, published in the late 2000s, adduces a president in command of his administration, quick to anger when required but sober about weighing pros and cons; he emerges as a president.

Now, I’ve read those diaries, and while they reveal a monarch who grasped the subtleties of serving as head of state, they also glaze the eyes with the unrelenting vapidity of the observations, canned patriotism, coy language: legal and international phenomena buried in leather. Wedded to momentum, Brands shows little interest in consequences. What Gramm-Latta in 1981 did to school lunch programs and the effects of “simplifying” the tax code in 1986 did to eviscerate the middle class gets scant attention; the delicious anecdote is his governing principle. Brands would rather recount the familiar story of OMB director David Stockman’s abasement before a damp-eyed Reagan after admitting to an Atlantic Monthly reporter the loophole-dotted racket that was the ’81 budget; or of the misadventures of Donald Regan, the president’s hapless second term chief of staff who exploited Reagan’s mental torpor to run the West Wing like a Wall Street boardroom and, naturally, became the Beltway press corps’ scapegoat when the Iran-Contra story broke.

The tome does boast two deviations from Prayer to Saint Ron. The first is a an impressive sifting through documents showing that Reagan campaign manager and former spook William Casey skulked through Spain “for purposes unknown” in the summer of 1980 at the same time as Iranians who later said they would release the American hostages after the 1980 election. Adding to the suspicious pattern was the George H.W. Bush administration’s reluctance to surrender any paper related to that period; FOIA requests in the intervening years have taken care of the rest. The world learned the results in November 1980, including the subsequent appointment of Casey as, what else, director of the CIA (he was distraught when he didn’t get the State Department). How this felonious and deplorable chain of events presaged the malfeasance perpetuated by Casey, McFarlane, Poindexter, Oliver North, and others is unremarked on by Brands, nor are the number of creeps and quasi-fascists with West Wing access (the absurd Al Haig, fired in 1982, was said to have growled to Reagan about Cuba, “Give me the word, give me the word and I’ll turn that island into a fucking parking lot”).

The second deviation: the inclusion of generous excerpts from the Reagan-Gorbachev duels in Geneva and Reykjavik without much comment, showing a nimbler president than expected, worth the credit that the sycophants lavish. As James Mann’s The Rebellion of Ronald Reagan documented, the president by this point had to fight leaks from Cabinet officers like Caspar Weinberger and the bitching from footstools like George Will for the apostasy of believing that the threat of nuclear war wasn’t worth American posturing.

El Salvador, playing coy with Botha’s apartheid regime in South Africa, Ed Meese’s conflicts of interest — they get paragraphs and in the case of Grenada a few pages because there was shooting and skullduggery and flags and things (a retired and less demented Haig said the Provincetown police department could have handled the invasion better). Meanwhile the banalities quietly fall, a grey drizzle. And the wrongness. In 1972, Nixon seemed “formidable” because of “his shrewd maneuvering between liberals and conservatives and his clever conduct of American diplomacy.” Bill Clinton defeated George Bush “aided by the wild card and sometimes wild-eyed candidacy of Texas billionaire Ross Perot.” For all his research Brands doesn’t seem to have an article that challenges Beltway clichés. To find credible critical biographies, look to Lou Cannon’s President Reagan: The Role of a Lifetime and Morris’ batty and ridiculed Dutch; even Steven F. Hayward’s two-volume special manages to situate Reagan in the conservative ferment in ways that anticipate Rick Perlstein’s The Invisible Bridge. Instead of reading H.W. Brands’ book, study the included photographs. They show depth of field, personality, and texture.