View 681 June 27 Reynolds

View Week 681 June 27, 2011 – 2

The Lochner Ness Monster

I haven’t thought about Lochner v. NY since I taught Constitutional Law at Pepperdine a very great many years ago. Of course most people have never thought about it at all, so that’s hardly astonishing, and most of those who have thought about it ,ay have done so in the wrong way and drawn the wrong conclusions. David Bernstein has a new book entitled Rehabilitating Lochner, and that wouldn’t get me thinking about it either, if Glenn Reynolds hadn’t written a review in Commentary (link). Reynolds writes not as Instapundit, but as Glenn Harlan Reynolds, Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. If all his lectures are as interesting as this review, he must be popular with the intellectually gifted among the UT law students. Grinds boning for simple answers may have a different view.

In the conventional law school wisdom, Lochner is paired with Plessy v. Ferguson (decided a decade before Lochner) as one of the cases limiting civil rights, and it is generally taught that way, but that’s not the real story – or at least it is not the story as I learned it from Professor Ken Cole at the University of Washington, and it’s not how I taught it in my Pepperdine courses for pre-law majors, possibly to their detriment when they got to law school.

Reynolds says

In my experience, law students exposed to Lochner for the first time, without being told that they’re supposed to hate it, tend to find it pretty reasonable: state passes law that impinges on individual freedom, court finds alleged purpose unpersuasive, strikes law to uphold freedom. That was pretty much the story of federal courts and the Constitution in the 20th century, and if Lochner had been at all unusual, that was only because it came so early on in the process. In methodology and approach, Lochner fits comfortably with all sorts of more celebrated cases, from Dean Milk v. Madison in 1951 (involving protectionism) to Griswold v. Connecticut in 1965 (the privacy ruling later used against Robert Bork in his ugly confirmation hearing).

Elsewhere, as Bernstein recounts, advocates for African-Americans’ and women’s rights often made use of freedom of contract as a way to strike down laws limiting those groups’ economic freedom. Freedom of contract was a powerful weapon for dissolving the legal rules that, unsurprisingly, tended to work against those excluded from legislative power. Economic freedom, far from being a tool of the big bosses, was an important way for the underdogs to gain the freedom to compete, and to undermine the legal support that was essential to making Jim Crow and related laws work.

There’s considerably more to think about in this review. I don’t expect lawyers in general, much less the general public, to read Bernstein’s book – I hope to get to it, but I have an enormous stack ahead of it – but I think any lawyer interested in law and the constitution would find it more than worth his time to find Professor Reynolds’ Commentary review of Bernstein’s book. Freedom of contract has been neglected lately. Sometimes rather obscure legal concepts can be very important in trying to recover a proper balance of individual, States, and Federal rights and powers. This is one of those legal points worth contemplating.

“The Lochner Ness Monster” a review by Glenn Reynolds. Commentary June 2011

View Week 681 Monday, June 27, 2011

View Week 681 Monday, June 27, 2011 – 1




Is Chris Wallace a Flake?


Fox News reporter Chris Wallace, who is certainly no liberal, decided that he would throw Michele Bachmann a softball. He has now apologized. He needs to rethink that.

The talk show host posted the video apology after his “Fox News Sunday” interview with the Minnesota congresswoman, who formally announced her presidential bid Monday in Iowa. Wallace said on the Fox show that Bachmann had a reputation in Washington for making questionable statements and asked her: “Are you a flake?” (link)

Instead of answering the questions, Bachmann chose to take umbrage, and she has collected a pot full of it. She insists the question is insulting, that she is a serious person, that Wallace has not groveled sufficiently and his apologies are not accepted. As for me, I’m not an experienced news interviewer, but I am an experienced political campaign manager, and I don’t see why it was an insulting question: Bachmann, like every politician on Earth, has said things in public that she would have said differently if she had the chance to do it over, and here she had a great opportunity to say something to that effect. It was a gold plated Mulligan, and Bachmann must have been having a bad day not to recognize that. Even had the question been asked in a hostile news interview and intended as an insult it would have been a great opportunity for Bachmann.

The question doesn’t make Chris Wallace a flake. I don’t watch a lot of political television, because I generally find that unrewarding. The ability to do political interviews and photo ops and such like is a necessary quality for holding high political office, particularly the Presidency. The office requires that one have the dignitas and gravitas to do national acts like awarding the Medal of Honor and delivering the equivalent of The King’s Speech, and that has to be shown during the campaign. The Brits have the descendents of the sons of the body of the Electress Sophia of Hannover to perform national functions, but in America that’s up to the President, and when the President lays the national wreath at Arlington on Memorial Day, we really don’t want to be reminded of the times when he paraded around in a toga during undergraduate days. Whatever else a President must not be, he – or she – cannot be a flake. Wallace could have been a bit more delicate in asking this, but he’s certainly not to be condemned for asking it.

Every political candidate is going to be asked to demonstrate that he/she is not a flake. Every former gaffe is going to be unexpectedly sprung , and at any point the candidate is going to be tasked at proving the absence of flakiness. It’s inevitable. Look at the endurance tests Sarah Palin was subjected to.


Is Sarah Palin a Flake?


Not in my judgment. She has been a Mayor, a Governor, a survivor of a national campaign, best selling author and survivor of several book signing tours – known in the trade as authors’ death marches – and a national political figure while holding her family together in a big public showroom. She has already shown that she has the dignitas to perform acts of national unity. We can argue about her other plusses and minuses, but she has already passed this test. Yes, she has said a few things she’d rephrase. I bet she’d have welcomed a chance at the Chris Wallace softball.


Is Michele Bachmann a Flake?


Until this morning I wouldn’t have given that any thought. Had I been her campaign manager (and understand that it has been a while since I was a successful campaign manager in campaigns for a Mayor and a Congressman) I would have warned her to be ready for that question – it was inevitable – and rehearsed both answers and reactions to the inevitable question. That’s the sort of thing campaign managers have either to do or to be sure someone else does. It’s a very important part of a campaign.

And that’s the problem for me: no, I don’t think Congressman Bachmann is a flake, but I do think she’s working at playing one on national TV; and I do think she was insufficiently prepared to begin a candidacy for President of the United States. She clearly chose the wrong campaign staff – any competent national campaign manager would know that she was going to be asked the question not once but many times. She clearly doesn’t yet see that Chris Wallace is not the enemy; if she thinks he was trying to insult her, wait until she gets the treatment from people who really don’t like her. Perhaps she could ask Sarah Palin what that feels like.

No, I don’t think Bachmann is a flake; but I do think she has insufficient experience in both executive office and in campaigning, and if she doesn’t grow up fast she has managed to end her campaign for President the day before it formally began.

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Note on Format

Note: I am experimenting with formats, and ways of presentation. I’m trying to get a template that works for VIEW, and a style – a way to present the day’s views as coherent thoughts, not some random string of thoughts in reverse order of their creation as this systems seems to encourage – and it’s taking me a while to evolve how to do it. I have one friend who says that if I keep this up I will manage to lose all my readers in a week. I have others who say I’m not doing so bad and it stays interesting, and a few who like the new system. Me, I’m still just trying to keep things going.

Suggestions welcome. What I need to do is stop thinking about presentation and use what’s left of my brain to think about what I’m writing, not how I am presenting it… We’ll get there. Please stay with it.

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Note on Apologies

Leroy Jethro Gibbs of NCIS is famous for saying “Never apologize. It’s a sign of weakness.” I don’t know the actual origin of that homily but Dinozo could give Gibbs a pretty good lecture on its use in movies. To the best I can tell, it originally appears as said by Captain Brittles in stories by James Warner Bellah. Brittles is the captain of a one-troop post in the Old West. He’s the hero of She Wore a Yellow Ribbon. Captain Brittles can’t be promoted; he has earned the hostility of some senior Old Army brass, and he is doomed to stay out there on the frontier as a captain until eventually he succumbs, probably on the trail of savages – like the captain in Spanish Man’s Grave, also by Bellah, and possibly the best army western ever written.

Colonel Bellah – one time World War I pilot, then an air commando with the Chindits and Stillwell – wrote many of the scripts for John Wayne westerns, and Wayne, having read the line, wanted it for himself. He was fond of using it off camera. In A Thunder of Drums Richard Boone gets to use the phrase but as a different captain with a history similar to that of Brittles. Thunder of Drums was written long after Yellow Ribbon.

Dinozo could come up with a lot more lore about John Wayne and the James Warner Bellah novels. I was privileged to know Colonel Bellah – he invited me to call him Jim, but I never quite dared – and I was able to publish “Spanish Man’s Grave” in, of all things, a science fiction anthology called “There Will be War.” James Warner Bellah was as colorful as any of the myriad characters he created.

Colonel Bellah died of a heart attack during a visit to his friend James Francis Cardinal McIntyre, Archbishop of Los Angeles. I’m sure he thought that appropriate.