Ian Millhiser on Conservatism and the Judiciary

Over at ThinkProgress, Ian Millhiser has a piece on conservative and the judiciary that ranges over many decades and many topics. Unfortunately, much of it is very tendentious and sometimes just wrong. It’s too much to do a detailed critique, so I’ll be brief and limit myself to his general historical perspective. [DB: Sentences in original post deleted after colleagues pointed out that I likely misconstrued a poorly written sentence.]

Millhiser provides a rather standard progressive critique of constitutional history from the 1890s until today, with no cliche unrepeated, no matter how inaccurate. “Laissez faire Social Darwinism!” “Union busters”! “Judges stood with industrialists against their workers, with unreconstructed racists against African Americans, and with the wealthy against nearly any effort to diminish their fortunes.” Judges struck down child labor laws! And of course, “LOCHNER!” Regular readers of this blog will recognize that these assertions range from blatantly false to distinctly unnuanced. (Just for example on the unnuanced front, the Court invalidated federal child labor laws as beyond the Commerce and Taxing powers, but upheld state child labor laws which then spread to every state).

No matter, says Millhiser, at some point there were pleasant surprises as Justices appointed by FDR and beyond protected the rights of African Americans in cases like Brown v. Board of Education and “ushered in modern free speech doctrine,” moving the Court in a “progressive” direction.

Millhiser closes his article with a quotation from Learned Hand, who “offered a different assessment of how he should behave if he wishes to honor the framers’ commitment to freedom. ‘The spirit of liberty,’ said Hand, ‘is the spirit which is not too sure that it is right.'” The irony, which Millhiser apparently doesn’t appreciate, is that Hand opposed Brown and modern free speech doctrine (which he in fact analogized specifically to Lochnerian liberty of contract), while the modern conservatives he met at the FedSoc convention embrace Brown and are in some ways more favorably inclined to modern free speech doctrine than progressive types are. Does Millhiser really think the Federalist Society would be a “better” organization if conservatives embraced the hostility to judicial protection of rights that characterized old Progressives like Hand? Or would acknowledging Hand’s views ruin the fairy tale that twentieth century constitutional law was a consistent struggle between the forces of good (“progressives” who wanted expanded economic regulation) and the forces of evil (“conservatives” who purportedly believed in “laissez-faire”)?

UPDATE: This is no the first time I have been unimpressed with Millhiser’s grasp of the historical trajectory of constitutional “conservatism”.

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