an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
David Brooks continues to be perhaps the most vexing of the NYTimes's columnists. He is clearly smart and often quite interesting. But, with regularity, he writes columns whose flaws seem obvious. So consider his column in today's Times, in which he basically laments the collapse of the Federalist Party in the 1800 election. That is, he beleives that the United States is (or ought to be) a "republic," very definitely not a "democracy." (No doubt he would regard it as a strength of the United States Constitution that it is "undemocratic.") As Gordon Wood points out in his magisterial Oxford history of the United States between 1789-1815, the Federalists (like, for that matter, most of those who framed the Constitution) decidedly mistrusted the masses and wished for leadership by elites who could be counted on to identify and then to act on "the public interest" instead of crasser interests (such as the preferences of their unenlightened constituents, who were expected to defer to their betters rather than prefer officeholders who took constituents' views all that seriously).
For better or worse, this vision of American politics, which among other things is based on the premise that there will be no "factious" political parties, was, as some say about decisions like Plessy, "wrong the day it was decided," and that was made clear for all to see no later than 1800. But the call for a return to a "republican" political order is a constant of American politics. It is the heart of the Progressive vision of high technocracy (and non-partisan elections) and of Michael Sandel's emphasis on the politics of the "public good" instead of a necessarily selfish "liberalism." One could also see such elements in the revival of "civic republicanism" that was an important part of the legal academy in the '80's (led by, among others, Cass Sunstein, who is now a leading member of the Obama Administration). Though Brooks is a Republican, Democrats, like Sunstein and Obama, are certainly attracted to it. (Perhaps this helps to explain why the "community organizer President" basically suspended any community organizing, which is too "democratic." Brooks very much likes that Obama.)
I don't mean to demean that vision. I suspect that all of us share the nostalgia at one time or another. Who actually likes the current decadent form of party "competition," well captured in the current Onion? But, as my then-colleague at Ohio State, David Kettler, pointed out in a brilliant essay some 40 years ago, republican nostalgists avoid coming to terms with the fact that it rested on a particular vision of political sociology, including, among other things, the deference by lower orders to their elite betters. (Not surprisingly, Brooks is nostalgic for the "establishment" that continued to possess a great deal of influence into the 1960s and itself collasped in the wake of Vietnam and the civil rights movement.) Brooks is ultimately engaging in fantasy, hoping that by some truly magical process a self-interested consumerist culture that has been systematically created over the past 200 years will simply disappear. However explicable his hope, it is deeply unserious. He needs, among other things, to reread Daniel Bell's Cultural Contradictions of Capitalism (not to mention The Communist Manifesto, which notes that under the pressure of capitalism "all that is solid," such as the kind of society for which Brooks is so nostalgiv, "melts into air"). Posted
by Sandy Levinson [link]
Nonsense. Elitism is alive and well. Why do you think you are the only one at Balkinization who takes comments from the peanut gallery? :)
But I would still rather hear your views on Garrett Epps' theory on the debt limit.
I think that's the point (re elitism). David Brooks is, in my opinion, deeply divorced from the reality of our current society. However, so is the political and social elite of this country. That's why he gets prime real estate for his ramblings.
The reality is that we have an oligarchy that is using democracy against "the rabble." Both parties are captured by the oligarchy and merely use democratic forms to retain power.
There were a few unseemly flaws in the country's founding; and the substrate dependence on elitist input is one such. I compare that sort of contradiction to something in law like the evidence rules for grand juries, which bodies have been known to incarcerate recalcitrant journalists.
It our time, the elites are meeting internet. Times are changing, slowly. Sometimes less slowly.
I agree that Brooks is indulging in fantasy, but I wonder why a law professor bothers to engage with newspaper columns when the same fantasy of elite rule is so pervasive in the legal academy. (Insert something about motes and planks.) In the academy, undemocratic sentiment usually takes the form of a belief that "basic human rights cannot be made subject to majority vote," i.e., abortion and gay marriage must be made legal by the courts, since the masses are too benighted to support these things by themselves.
As Prof. Levinson notes, judicial decisions of this nature don't attain much legitimacy in our current culture.
Jack Rakove's "Original Meanings - Politics and Ideas in the Making of the Constitution" includes Chapter VII "Federalism" and Chapter VIII "The Mirror of Representation" that David Brooks might not have read or understood in writing his column as there was no uniformity on republicanism on the part of the Framers/Founders, even among Federalists.
When I read a column like Brooks', I think of C. Wright Mills' "The Power Elite." I wonder what Mills would say about the current financial/economic situation with Republicans uninterested in reform that just might protect consumers from the excesses laid upon us in the 2008 Bush/Cheney Great Recession.
As for Brooks, it should be kept in mind that his career as a pundit resulted from his criticism of Bill Buckley, as a result of which Brooks was hired by Buckley, didn't change Buckley's thinking, but his own. Hmm. Making lemonade?
Paul Krugman's column in today's NYTimes (5/9/11) "The Unwisdom of Elites" does not mention David Brooks and the latter's column that is the subject of this post. But those of us who follow Krugman's blog at the NYTimes are aware that he is not reluctant to criticize his fellow columnist by name.
The portion of Maggie's quote " ... other people' money ... " brings to mind Louis Brandeis' "Other People's Money and What Bankers Do With It" thinking back to the 2008 Bush/Cheney Great Recession. Paul Krugman in his NYTimes column yesterday "The Unwisdom of Elites" points to the fault of the elites rather than the masses. Keith Olberman' "Lotto Nation" yesterday points to why many of the poor are sucked into approving tax and other policies that are against their interests.
So I rather doubt that our yodeler's "marriage of Ben and Maggie" quotes sums up David Brooks' column. Ben was said to be sort of a womanizer, but I doubt that Maggie would have earned a second look from him.
Kudos for having the guts to quote good old Karl Marx! Where he's right, he's right! Pity that that (being right) was comparatively rare with Karl & Friedrich!
What the concept of elites and enlightened republicanism misunderstands is that conflict in society is the rule - and not the exception. Incidentally, that's where I differ from Marx: He thought once the proletariat ruled, conflict would cease to exist.There is no one best solution the enlightened only are empowered to detect.
The peaceful resolution of such conflicts between warring factions is the constant challenge of a community that is to thrive, and doing so by democratic means to me is the only viable way of communal life.
However, democracy doesn't mean the "tyrrany of the majority" under all circumstances. You must excuse me for ceding to the enlightened courts the role of protecting unalienable minority and individual rights.