Manifesting the philosophy of legal realism, Justice Stephen Breyer earlier this week suggested that Koran burning could be banned, in part, because it might create international tensions and protests. His concern for international standards has begun to creep into Supreme Court jurisprudence, in particular on matters of war and the death penalty. The main problem with this approach is that it ignores the text of the Constitution and the uniqueness of the Anglo-American regime of legal rights. Our extensive free speech rights, protections for the accused, and the right to bear arms are not shared with Continental Europe. They are almost totally unheard of in the Third World. An excessive concern for the standards of these other places would rather quickly degrade our historical patrimony.
Further, the whole idea of a “living” Constitution where obvious questions such as Koran burning cannot be effortlessly resolved as constitutionally protected is a natural outgrowth of the legal realist movement. This has been the dominant philosophy of the legal academy and the legal left since the 1930s, growing from the writings of Justice Brandeis and Cardozo. It is an insurgent movement that denies the meaning of texts and ultimately destroys real law, since all predictability is set aside in the name of advancing social justice. So-called legal realists are at bottom nihilists; they do not believe there are legal answers to legal questions discernible based on language and the application of outcome-neutral rules of interpretation. The legal realists’ talk about “penumbras” and “international standards” is at its heart a smokescreen to provide cover and concealment to their advance of their own unauthorized power and a related and unpopular notion of right and wrong. This is why convoluted opinions claim a right to gay marriage, abortion, al Qaeda detainees not to be executed upon capture, and the like, while purporting to struggle over whether a Washington DC gun ban violates the Constitution’s Second Amendment. This is why judges assume more and more power, in spite of their limited role under the Constitution.
If legal realism is all about power, nonetheless, it may seem mysterious why a left-liberal Jew like Breyer would make common cause with fanatic, illiberal Muslims. But he’s not alone. Consider Mayor Bloomberg. The reason for such an instinctual alliance is Breyer’s and most liberal Jews’ self-concept as a vulnerable minority outsider swimming in the ocean of a potentially hostile majority, namely, white Christians. Understanding themselves as such, certain Jews have made common cause with outsiders and minority groups repeatedly in American history, not least in the form of the civil rights movement; their paranoia thus makes them viscerally hostile to expressions of majority nationalism and unity, even when those expressions are mild in comparison to the stated aims of fanatic Muslim newcomers. The other minorities are seen as basically harmless, but a rinky dink white Christian pastor in the middle of nowhere becomes in their eyes the harbinger of future pogroms. In this instance, an otherwise unshakeable belief in freedom of expression must give way for the sensitivities of Muslims. Not all opponents of Koran burning think this way; their stated concerns for nonviolence or respect for the beliefs of others have some salience. And certainly not all Jews conceive of their group’s interests as Bloomberg and Breyer do. But when Breyer expresses himself neutrally on these issues, he may be dismissed as a fraud. Through his legal realism, he and others like him told us that that their stated reasons for anything they do are a smokescreen for the acquisition of group power. They have, in essence, admitted they have no legal conscience; thus, they do not deserve to be taken seriously other than as a troublesome, power-hungry group of phonies.
That the courts have any respect remaining at all is only due to their legal realist members’ concerted effort to conceal what they are doing and why when it comes to controversial social issues. Legal realist judges are wont to hide how they come from a very narrow sliver of the population, a group often at odds with the values, religious beliefs, and life experience of the majority, and further do not want it known how this view has become dominant in the legal profession, in particular among the professoriate, and thereby polluted the legal thinking of two generations of judges. The hostility and paranoid self-concept of certain minority judges would not be as big of a problem if these were mere technicians, who acknowledged the sacredness of constitutional texts, but they do not. They admit in the abstract and also in their academic writings that they are seeking power for their group in what they see as a zero sum game for influence. If the real meaning of legal realism were well known, then this power play would be rejected by the majority as undemocratic and directly hostile to their interests, and the judiciary would be held in permanent disrepute.
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That was an interesting article, even before it got to the Jews. Having just skimmed the Wikipedia page on legal realism, I feel qualified to add my own thoughts. First of all, your main criticism of legal realism seems to be that you don’t like the proponents’ view of justice, not the fact that their legal theory is a “smokescreen” for that view. I don’t understand your theoretical objection. You seem to be complaining that they believe positive law is indeterminate, though one doesn’t have to be a nihilist to believe that. Some pretty well regarded conservative jurists have believed that too. Are you saying that positive law is determinate? That seems to go against common sense. If it isn’t determinate, then you’ve got to fill in the gaps with something – natural law or a subjective feeling of justice probably.
On the Jew thing, I think you’re way, way off base. Your description might have been accurate in the 1950s. It still might be the view of certain loudmouth Jews like Abe Foxman (how old is he?). It just doesn’t reflect the worldview of Jews under, say, sixty-years-old. See for instance this review of the documentary Defamation in Heeb Magazine. And speaking of which, does a people who believes themselves to be a “vulnerable minority” living in paranoid fear of pogroms write, publish, and read magazines like Heeb?
My own explanation for why present-day American Jews have the worldview they do might sound far-fetched, but here it is: they believe what they do today mostly for the same reasons as the gentiles who believe the same things. There’s certainly hostility to some forms of Christianity, though very little hostility to Christians in general; but there’s plenty of such anti-Christian hostility among nominally Christian liberals too. When it comes to Israel, there’s certainly a lot of self-deception among most Jews. But all in all, Jews support their left-liberal causes for the exact same reason left-liberal goyim support those same causes: justice.
It seems to me that you are making a fetish out of your constitution. To demand that every word of the American constiution be obeyed makes you sound rather like those extremists who believe that every word of their holy book the Koran, must be followed to the letter.
We in the West complain that many Islamists live their lives by a rulebook written down in 7th century Arabia. The agrarian world and people of that period have long gone and we say that Muslims need to engage with the modern world in a “realistic” way.
Coming from the UK, we do not have a constitution and Common Law was developed case by case. That has allowed the British legal system to develop in a flexible manner and respond to the times we live in. In some ways I wish there was a Bill of Rights for the UK but on the whole, I’m happy with the status quo.
Personally, I don’t think your Founding Fathers would have taken kindly to burning the Bible or the Koran and again speaking personally, the right you have to possess firearms is crazy.
Don’t forget that your constitution did not come down from the mountain on tablets of stone and were not written by the hand of God. It has been amended and interpreted by generations of Americans. Long may that tradition continue!
Aaron check this out; there is a reason that this strange common alliance with Muslims is taking place against majority Christians. Simple leftism does not explain why Jews and other leftists do not disrespect and disempower both religions. I also believe Stephen Breyer may be about 60 or a little older than that, so the fact that some younger Jews are just all around cynical and not terribly political does not change what I’m saying, which seems explanatory for Bloomberg’ and Breyer’s strange instincts on this.
I also think you misunderstand legal realism. It is not a choice between “determinism” and “nihilism” but one between law as interpretation of language with a good faith attempt to discern an existing (if hazy) meaning and law as a tool to advance a policy view, where the explanations are done only to hide what’s done and preserve the authority of the legal realist storytellers.
Incidentally, as a descriptive manner, what I’m saying is not exactly controversial:
And Steve, there is no need for a fetishism. My objections to realism apply equally to legal realist contract and statutory interpretation. It seems unobjectionable to me that so long as the Constitution exists and is, as it states, the Supreme Law of the Land, it should be followed. After all, it may be amended, and there is a process to do so. Indeed, both left and right purport to hold the Constitution in high regard and follow its dictates. The only fetishism relevant today is that of the “judge worshipers” who believe the Supreme Court has de facto unreviwable authority without any legislative or executive recourse other than amendment, in spite of it having gone off the rails through the power-grabbing philosophy of legal realism.
And Steve, seriously, I doubt you would have countenanced George W. Bush’s “getting with the times” by ignoring the Constitutiono on free speech or the rights of the accused when it cames to the War on Terror. Then, of course, you and every other liberal would have been very very concerned with the Constitution, or at least your understanding of it. So it seems to me the Constitution is a common and highly esteemed reference point in America that does what it is supposed to do, limit majority power and slow the rate of government growth.
“Don’t forget that your constitution did not come down from the mountain on tablets of stone and were not written by the hand of God. It has been amended and interpreted by generations of Americans. Long may that tradition continue!”
As you note, Americans still have the option to amend the Constitution. They just haven’t chosen to do so, which is why the judges have resorted to their twisted interpretations. I don’t see how respecting the laws of the Constitution as it is written, until the people decide to amend it, is somehow more primitive than letting a small group of judges decide law based on their own ideological leanings.
The United States also has a common law tradition, however, it is supposed to be subordinate to the written Constitution. The fact that the Constitution has been used to justify a right to abortion, for example, shows that the situation has largely been reversed.
In fact, one of the reasons the Constitution was written was because the founders of the United States felt that their common law rights as Englishmen had been violated by King George’s government, and believed that a written Constitution would be instrumental in preventing similar abuse in the new government.
No, the Constitution is not divine law, but the respect we accord it is one of the reasons it has served us well, as opposed to the myriad other Constitutions of the world that have been routinely ignored and cast aside.
Of course “simple leftism” doesn’t explain the pro-Muslim, anti-Christian sentiment on the left. Neither does Jewishness, though, because Jewish and (white) non-Jewish leftists are amazingly united on all this. Again, I’m talking about today, not a century ago.
Even with older Jews like Breyer it’s not likely that paranoid fears play a role in his beliefs. A much more important Jewish connection, from my limited anecdotal experience, is sympathy with the minority and the outsider – Muslims, Hispanics, etc. I think this is still salient today, when the great majority of Jews are too young to remember the Jewish quotas and restricted country clubs and restaurants of the 1950s and before. But again, siding with the outsider is nearly universal on the non-Jewish left as well, so Jewishness doesn’t seem to be an important factor today.
Re legal realism, I didn’t mean to suggest it was a matter of nihilism vs. determinism. To the contrary, I said that opposition to legal determinism is not nihilistic. I watched that boring talk in that clip you posted, but I didn’t see anything there that goes against anything I said. I don’t doubt that Jewishness was important to the development of legal realism.
I think you’re ascribing way too much explanatory importance to the pursuit of raw power and way too little importance to justice. If Jewish legal realists, or Jews on the left in general, are motivated not only by group power but also by justice as they understand it, then it’s not at all surprising that they’d support policies that undermine their own group’s power and security – for instance, supporting anti-Jewish Muslims. Jewish group interests are an important factor in Jewish-American politics, but they’re only one small part of a a very complicated picture.
A few thoughts. One the justice aspect is important, I agree with that. I think there is a continuum and also overlap between leftist ideas of group interest and justice, both among Jewish and nonJewish leftists. I think blacks think affirmative action is both just and good for blacks. Legal realists say, in effect, there is no real justice, only power relations, and thus the power of the little guy needs to be advanced against the big guys and we need to do away with all pretense of real law and legal predictability, that stuff about precedent and “finding the answer” that still prevails in state law schools in the hinterlands. What I call a power grab they know is a power grab but they call it justice, but they don’t mean justice the same way I or the Bible or Aristotle meant it.
Two, the Jewish interest thing does explain why there is so much sympathy among them for Muslims in Europe (Bosnia, France) and America while there is so little (other than among a few that are intellectually consistent like Norman Finkelstein) for Muslims in Palestine or the Middle East. These leftists who are also ethnocentrist simply think they can play both sides of the fence. The contradictions of sounding like Noam Chomsky at home and Ariel Sharon with regard to Israel–consider the ridiculous Alan Dershowitz–are obvious.
Finally, there really is no hardcore left in America without Jews. Jews have defined its thinking, its interests, its chief concerns (civil rights, opposition to Vietnam War), its major institutions (moveon.org, ACLU, Saul Alinsky,), and its leadership for generations. Yes there are non-Jews in the left, and yes for some of them are leftist for the same reasons (i.e., being outsiders or thinking of themselves as such) and thus they act the same way. And yes some too are not self-interested necessarily but motivated by a suicidal notion of justice. But the Jewish influence on the thinking of the entire leftist world is obvious to everyone, not least the Jewish left itself. They view their accomplishment with pride.
Incidentally, I don’t think we’re fated to live this way. The earlier wave of Central European Jews to America in the early 19th Century was conservative in temperment and generally kept a low profile. And many well adjusted Jews from all backgrounds today reject the leftist view of the world both as a matter of justice and also reject that it’s good for the Jews. There is an older Jewish approach of being a good neighbor, unobtrusive, unobnoxious, and respectful of the majority community and its mores. It is probably a better formula, rather than the notion of justice-seeking vanguard looking out for the forgotten little guys. Eventually majorities get sick of being scolded by a censorious group that has its own share of cultural and moral problems. There is such a thing as overplaying one’s hand, and the end result is not a good one.
“Personally, I don’t think your Founding Fathers would have taken kindly to burning the Bible or the Koran and again speaking personally, the right you have to possess firearms is crazy.”
Our Founding Fathers may not have taken burning the Bible or Koran “kindly,” but then again, they wouldn’t have threatened death either.
And regarding firearms, you might want to use your brain a bit. Here in the colonies, some places like Washington DC forbid the possession of handguns, yet many people get shot, often dead, on a regular basis. In Vermont, you can “pack heat.” No permission of the authorities is needed. Yet oddly, in VT, shootings (and crimes of any kind) are low in number. Of course, nobody knows why that would be.
“the right you have to possess firearms is crazy.”
Yes, many EU subjects feel that way about human rights.
…the right you have to possess firearms is crazy.
That is arguably the best part of the Constitution. Without the 2nd Amendment the other rights are not worth the paper they are written on.
Your affirmative action analogy is not at all what I was talking about. I’m talking about Jews consistently supporting justice even when it’s opposed to their interests. This happens a lot, though it also is conspicuously absent a lot. Contrary to what you suggest, American Jews do support Arabs in Israel and the territories against Jewish interests – but nowhere near to the extent that the leftist sense of justice alone would explain. That Dershowitz dickhead is not typical of Jewish liberals (and even he is a strong long-time supporter of Palestinian statehood). American-Jewish attitudes towards Israel and other places with Muslims shows that neither explanation, justice or group interest, is enough by itself.
I don’t know what you mean by the hardcore left. If you include most radical left university professors, then your claim that there’s no hardcore left without the Jews may be true in a narrow sense – high disparity and influence – but it’s very misleading and doesn’t say what you probably mean it to say. If all Jews were to disappear overnight, the universities, television shows, movies, etc. would still be about as leftist as they are now. At least that’s what I see from the non-Jews I’ve known in those professions, who would constitute the new elites. My anecdotal experience may be wrong though. I’d love to see this quantified: what is the difference between Jews and non-Jews after factoring in education, income, social class, etc.? How different is the politics of upper-middle-class, post-grad-educated Jews from that of upper-middle-class, post-grad-educated gentiles?
Many anti-Semites (I’m not using that as a swear word, and no I don’t mean you) have sort of a Dracula model of Jewish influence: the sinister, Eastern European count bites the virtuous Mina Harker, mixing his blood with hers and thereby controlling her. Thus, once Dracula is killed, Mina is freed from his evil spell. I think this is the wrong model. I’m arguing for the werewolf model: the curse is caused by the bite of a werewolf, but killing the original werewolf does not release his victims from the curse. Once someone becomes a werewolf, the question of how and by whom he became a werewolf is actionably irrelevant. Each werewolf must be killed, not just the wolf who was ultimately responsible.
Another comment on Breyer. I don’t see how his argument fits with your rather polemic description of legal realism: “the power of the little guy needs to be advanced against the big guys and we need to do away with all pretense of real law and legal predictability….” Breyer wasn’t arguing we should take into account Muslim reactions because they’re the little guy, i.e. the Other. He was arguing based on a precedent, a finding by Oliver Wendell Holmes. I have no doubt that his sympathy for the Muslim Other was behind it, but it’s not what he was overtly arguing. Legal realists sometimes do make such overt arguments for the little guy, in cases where positive law is indeterminate. Breyer didn’t. Obviously his argument wasn’t consistent with textualism or originalism or anything like that, but I still don’t see how his argument was legal realist as you yourself describe it.
I am in way over my head here, but isn’t precedent frequently used as the window dressing of legal realism – just sort of as a matter of legal form?
Isn’t the question of whether it’s legal realism or not a matter of how badly they abused the precedent, as Breyer obviously did by suggesting that speech which offends approximately a quarter of the world’s population could be forbidden? If you are willing to stretch it far enough, can’t you always find a precedent to justify just about anything?
This reminds me of the famous Buckley-Vidal debate where Buckley threatened to kick Vidal’s ass. They were arguing about Vietnam protesters at the DNC burning the American flag, and Buckley said that the sensibilities of blue collar Chicagoans should be respected. Vidal responded by asking what we were fighting for if not to protect the right to free speech. It’s funny how the Left’s perspective changes when it’s a foreigner getting offended.
Dave M., you’re probably right. Like I said, my knowledge of legal realism comes from glancing at a Wikipedia entry. So let me rephrase my question to Mr. Roach.
Reading an opinion by Antonin Scalia, you can probably tell that it’s textualist (or originalist or whatever you call it). There’s a concern with the text itself, in historical context – contemporary definitions of terms, etc. So, how could you similarly identify a legal realist opinion as legal realist? Presumably, not by its ruling for the “underdog”: that would be a statistical trend, not something that would identify each and every individual opinion. What signs would identify a single opinion as legal realist, as opposed to some other non-textualist legal theory?
Some realists say they’re realists, so you can assume most of their decisions are realist. Sometimes the textual or precedential ruling is so obvious one way–such as the Roemer decision a few years ago–that to go the other way makes it plain you’re acting in a realist manner. Finally, as here, there is no doubt under the First Amendment that core expressive speech, even what Europeans would call hate speech, is protecdted. This is true in the case of flag burning and Nazis marching in Skokie and all the rest. To say there is some exception for the prickly Muslim community has no basis, and the Holmes quote–which recognized a narrow exception based on public safety and disturbing the peace–is something that barely deserves serious engagement. So, when someone is just so obviously wrong and in left field as the Court’s far left is, we can assume they are a bunch of realist usurpers, as many often admit in their academic and non-opinion writings.
Finally, there really is no hardcore left in America without Jews. Jews have defined its thinking, its interests, its chief concerns (civil rights, opposition to Vietnam War), its major institutions (moveon.org, ACLU, Saul Alinsky,), and its leadership for generations. Yes there are non-Jews in the left, and yes for some of them are leftist for the same reasons (i.e., being outsiders or thinking of themselves as such) and thus they act the same way. And yes some too are not self-interested necessarily but motivated by a suicidal notion of justice. But the Jewish influence on the thinking of the entire leftist world is obvious to everyone, not least the Jewish left itself. They view their accomplishment with pride.
I agree with that paragraph and would add to it the ill effects of the Frankfurt School and the feminist movement.
As for the werewolf analogy above, I guess between that an the Dracula analogy, I lean the werewolf way. In other words, I’m an across the board anti-leftist. That said, I think it’s important to show what’s going on, particularly since so much leftism is leveraged over the Holocaust and how it allegedly discredits the entirety of Europe, European people, and natioinalism of all kinds. And I think the geneology of ideas is important, if only to expose the obvious (or in some cases merely apparent) contradictions of the left and its advocates. Finally I think much leftism is perpetuated by a concerted propaganda campaign and might dissipate if the propagandists in chief in the academy and media were disempowered.
White guilt and Christian guilt is poison. It needs to be fought root and branch, whether with regard to slavery, the Holocaust, the alleged evils of Medieval Europe, or the alleged saintliness of various ethnic and religious minorities. We need to understand the past, acknowledge certain injustices, treat all people as decently as conditions permit, but always affirm our right to exist and thrive as a coherent, historical people.
[…] supreme court justice has proposed that burning the Koran be banned – though none would suggest similar courtesy for the flag or the bible, or the 9/11 dead. […]