As I write in the item listing, Louis Brandeis wasn't just a pioneering lawyer and judge; he was also a radical enemy of private property rights and free markets. Prior to joining the Court he authored the famous "Brandeis Brief" in Muller v. Oregon, arguing that women are too delicate to know what's best for them and therefore the government should limit the kinds of economic choices they make. (The Green Bag folks have a nice picture of the Muller brief on the box.) And as David Bryden pointed out 25 years ago in Constitutional Commentary, the "facts" in Brandeis' Muller brief were dubious at best. What's more, in Leibmann, Brandeis argued in favor of a heinous state-created cartel in the ice business which violated basic constitutional principles of economic freedom and hurt working class entrepreneurs trying to make a living. And he argued that private property rights should be "remolded, from time to time, to meet the changing needs of society"--an idea that helped usher in the era of eminent domain abuse, which recently made headlines in the infamous Kelo decision. "Remolded," after all, is just a euphemism for violated.
Nevertheless, there are still many lawyers who admire Justice Brandeis, and heck--whose Supreme Court bobblehead collection could be complete without old Louis? So here's the deal. I will be donating all proceeds from this auction to the Pacific Legal Foundation, a non-profit public interest legal foundation devoted to defending property rights and economic freedom against the kinds of things that Brandeis favored! This holiday season you can get your loved one a rare Supreme Court collectible--and serve poetic justice at the same time!
God's favorite serial child rapists are still having trouble. Warren Jeffs has been indicted on a new count in Texas, along with three other cult leaders. Seventy-two year old Frederick Jessop is charged with overseeing the "marriage" of a 12-year-old girl with Jeffs, who was 51 at the time. "The girl, now 14, was returned to state custody in August after her mother balked at cooperating with Child Protective Services caseworkers." No doubt the lumpenlibertarians will complain about the tyrannical state violating the rights of child molestors....
There's a brief article here from The Weekly Standard about John Milton, my favorite poet, and, incidentally, a great figure in libertarian history. Milton will be 400 years old next month. (The article erroneously says 500).
I enjoyed Mr. Weider's observation that "Unless the epics are read aloud, it's impossible to hear them, no matter how developed the inward ear. This presents a daunting task for a generation taught to read to itself without moving the lips." I first read Paradise Lost on the bus to work in San Bernardino ten years ago--perhaps the only place in the world anymore where you can talk to yourself, not on a cell-phone--and probably the least Miltonian place on earth....
It's true, Milton can be daunting, and at times painfully dull and obscure. But then there are other times, when he reaches the height of lyrical beauty and expresses things better than anyone else. I continue to think that his depiction of the love story of Adam and Eve is the most perfect depiction of romantic love available. Adam speaking of Eve:
...when I approach Her loveliness, so absolute she seems And in her self compleat, so well to know Her own, that what she wills to do or say, Seems wisest, vertuousest, discreetest, best; All higher knowledge in her presence falls Degraded, Wisdom in discourse with her Looses discount'nanc't, and like folly shewes; Authority and Reason on her waite, As one intended first, not after made Occasionally; and to consummate all, Greatness of mind and nobleness thir seat Build in her loveliest, and create an awe About her, as a guard Angelic plac't.
Then, if you leave the church to its own government...and will no longer suffer two powers, so different as the civil and the ecclesiastical, to commit fornication together, and by their mutual and delusive aids in appearance to strengthen, but in reality to weaken and finally to subvert, each other; if you shall remove all power of persecution out of the church...you will then effectually have cast those money-changers out of the temple, who do not merely truckle with doves, but with the dove itself, with the Spirit of the Most High.
Then since there are often in a republic men who have the same itch for making a multiplicity of laws, as some poetasters have for making many verses; and since laws are usually worse in proportion as they are more numerous, if you shall not enact so many new laws as you abolish old, which do not operate so much as warnings against evil, as impediments in the way of good; and if you shall retain only those which are necessary, which do not confound the distinctions of good and evil, which, while they prevent the frauds of the wicked, do not prohibit the innocent freedoms of the good, which punish crimes, without interdicting those things which are lawful, only on account of the abuses to which they may occasionally be exposed. For the intention of laws is to check the commission of vice, but liberty is the best school of virtue, and affords the strongest encouragements to the practice.... Lastly, if you shall not dread to hear any truth, or any falsehood, whatever it may be, but if you shall least of all listen to those, who think that they can never be free, till the liberties of others depend on their caprice, and who attempt nothing with so much zeal and vehemence, as to fetter, not only the bodies but the minds of men, who labour to introduce into the state the worst of all tyrannies, the tyranny of their own depraved habits and pernicious opinions; you will always be dear to those who think not merely that their own sect or faction, but that all citizens of all descriptions should enjoy equal rights and equal laws.
Four centuries ago he said this! How sad that today's religious right know so little of the true and glorious history of Christian libertarianism.
We must make our election between economy and liberty, or profusion and servitude. If we run into such debts, as that we must be taxed in our meat and in our drink, in our necessaries and our comforts, in our labors and our amusements, for our callings and our creeds, as the people of England are, our people, like them, must come to labor sixteen hours in the twenty-four, give the earnings of fifteen of these to the government for their debts and daily expenses; and the sixteenth being insufficient to afford us bread, we must live, as they now do, on oatmeal and potatoes; have no time to think, no means of calling the mismanagers to account; but be glad to obtain subsistence by hiring ourselves to rivet their chains on the necks of our fellow-sufferers.
There are some libertarians who argue that libertarianism has no conception of the good life; that it is neutral with regard to values and simply draws boundaries around individual choices, but makes no claims about how individuals ought to live.
I have long considered this view so silly and insubstantial (albeit common) that I haven't bothered to discuss it much, but it's now entered my neighborhood of the blogosphere, so a few observations may be warranted. It is, certainly, the single leading handicap of libertarianism in public debate.
First, it is ludicrous to suggest that any politics can exist without a basis in some conception of the good. Every attempt to create a "value free" politics fails, usually by showing that at bottom there is some normative conception about how people ought to live. Today's law and economics scholars, for example, adhere to what they consider a scientifically value-neutral conception of political society, advancing "efficiency" rather than anything like goodness or whathaveyou. But when you look closer, it turns out they are smuggling in a conception of the good: that is, they assume that an increase in "social wealth" is a goal to be pursued through political means. Thus efficiency is a good thing because it promotes the increase of social wealth. Or take Mises, than whom nobody has more rigorously eschewed moralism...and yet who wrote that "Everything that serves to preserve the social order is moral; everything that is detrimental to it is immoral." (A horrifying assertion, by the way). Or take Todd Seavey's argument, which smuggles in a conception of the good: namely, that it is good for individuals to have the freedom to make free choices within the realm of their moral vision--to join whatever cult or following they wish. That it is bad, in other words, to be deprived of that freedom. This conception of autonomy is a conception of the good life, whether you like it or not.
If it were possible to construct a politics that really was entirely devoid of pronouncements about what is good or bad for human life (which it is not), what good would it do? It is often said that if there were some ether or quitnessence that really could not be measured in any way by physical processes, it would have absolutely no relevance to us because it would not be interacting in any way with the world. Likewise, a politics that really was value-neutral would have nothing to say to us as human beings, and would be pointless. What's more, it would be vulnerable to any claims about the good life, no matter how weak, since it is a vision of the good life that all human beings need.
You cannot have a politics of liberty that avoids the issue of what it means to lead a good life, and I will point to one example of this. Note that Mr. Seavey's blog post begins with a photograph of the Amish. Well, there is a reason that the Amish are a religious minority living in a free society, and not the other way around: there is a reason that the Amish never developed a philosophy of classical liberalism. You cannot have an open society without open people, without open individuals. You cannot hope to have a tolerant society without the idea that tolerance serves human needs and is good for human beings.
It was the great achievement of the classical liberals, not that they threw up their hands at the question of the good life, but that they rightly understood that the good life requires freedom. Yes, of course that included a wide realm of autonomy in making moral choices, but such autonomy is the farthest thing from true moral agnosticism. On the contrary, it was the very idea of natural rights--that there are pre-political principles of right and wrong which the state itself must obey in its dealings with us--that was the greatest discovery of the 17th century Whigs who gave birth to libertarianism. It is certainly true that "the great danger for humankind, whether from the Taliban or the communists, has always been the totalizing impulse to turn all social complaints into justifications for political action." But what libertarians discovered was not that these "social complaints" are somehow meaningless or matters of mere personal taste--but that it was the "totalizing impulse" that had to be restrained. Why? Because under that impulse, the good life is not possible.
One final note for clarity. A common fallacy in this area is treating individual rights as primary moral principles. When one conceives of libertarianism as making no claims about the good life, one tends to fall into arguing that respecting individual rights is the whole content of morality in the libertarian vision. One comes to the same silly conclusion as the Wiccans: "harm none, do as you will." Of course, this can give the individual no idea as to how to actually behave, and Den Uyl and Rasmussen have recently demolished it. Their work is highly recommended on this point. Individual rights must be understood within a philosophical hierarchy: they exist to serve an end, but they are not the whole of morality, nor do they substitute for questions about morality. They exist because the pursuit of the good life requires that we abide by certain principles in our treatment of others and that they abide by certain principles in their treatment of us. Individual rights serve human flourishing. And that is why some cultures--those which reject human flourishing as an end to be pursued--have no respect for individual rights. And that is why libertarians cannot be moral relativists.
YouTube has a marvelous video of Williamsburg's Bill Barker as Thomas Jefferson, speaking and answering questions from the audience. Barker is a particularly effective Jefferson, in part because he looks so strikingly like the real man. Here's part 1: