WARREN BURGER ON ECONOMICS II: THE PRIMACY OF POLITICS

Again writing in the margins of H.H. Overstreet's The Mature Mind (1949), Warren Burger reveals an apparent belief in the primacy of politics over economics. In the context of a discussion of how economic pursuits form "the character structures of men" (174), and not always for the better, Overstreet writes: "Whenever our economic order is challenged, its supporters point with pride to the fact . . . that it has raised the material standard of living in those countries where it has been the dominant order" (175). Burger places an asterisk next to that passage and writes at the top of the page:

"This is what leads NAM orators to speak of private enterprize 'making America' when in truth it is America's freedom that made private enterprize."

NAM refers to the National Association of Manufacturers, which nowadays even has a blog, devoted this week primarily to attacks on H.R. 800.

Burger's notes on Overstreet are very interesting; his notes on chapter seven in particular are among the most unexpected finds in the whole collection.

WARREN BURGER ON ECONOMICS

In his copy of H.H. Overstreet, The Mature Mind (1949), Warren Burger wrote down a few thoughts on the relationship between economics and politics. One of them is below, and I note it in the hope that a good friend of mine who works at the FTC will find it amusing. The full page is immediately below; it is page 166 of Overstreet.


Overstreet begins his discussion of economics with a reference to the origins of the words "economy" in the Greek word for household. Burger underlines both "household" and "household unit" and draws a bracket to the left hand margin, where he writes:

"If we stayed closer to the Greek meaning we would need less of antitrust laws, FTC + even labor unions."

It is a bit of an odd statement: it seems to presume collective ability to choose earlier economic forms - we could "stay closer" to a form of economic life that is pre-modern and pre-industrial. This idea is in some tension with Burger's view - expressed elsewhere - that society grows incrementally. See my posts below, particularly here, where he writes that "mystics and romantics dream good dreams but they want to leap over centuries. Man does not leap over centuries. . . ."

Arguably, a longing for Greek forms of economic life is the ur-form of romanticism (at least in its German variant). It's not clear that this short note expresses such a longing, but it's also not clearly unfair to raise the point.

SKETCH OF ROUSSEAU

Yesterday I wrote that I was suspicious of the "merely antiquarian," but that doesn't mean that I can't overcome that suspicion.

Below is a sketch that someone left between pages 512 and 513 of Warren Burger's copy of Durant, The Story of Philosophy (1926, 1927). It is on an otherwise blank sheet of 5 1/2 inch by 8 1/2 inch bond paper (three hole punched). The drawing itself is about 3 inches wide by 3 3/4 inches tall.


Durant has several plates with portraits of the subjects of the book - Socrates opposite the title page, Nietzsche between pages 438 and 439. The sketch above seems to have been made from a plate between 282 and 283 reproducing an engraving of Jean-Jacques Rousseau. The chapter that contains this plate - on "Kant and German Idealism" - is annotated with a few margin notes in pencil, in a cursive script, in what appears to be Burger's hand. The previous chapter - on Voltaire - is more heavily marked.

Unfortunately, the particular engraving that my probably-not-so-mysterious sketch artist was working from is not available on the web. It's not a perfect likeness, but it's not bad, either.

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PS: Thanks to all of you who responded to my request for tips on where I might donate these books.

LIBRARY TIPS?

Does anyone out there have suggestions on a library that might be interested in books with marginalia from our 15th Chief Justice? I have contacted one special collections department at a local law library, but they haven't gotten back to me, which I take to be a sign of disinterest.

The fact that these books were up for sale in an anonymous warehouse in Rockville - no disrespect intended to Second Story Books, of course, the best used book store I have ever seen - says something about the relative anonymity of members of the Supreme Court. (The books were very cheap.) But it also says something about American approaches to history, I think. We like myths more than we like documents. Maybe there is nothing particularly American about that. And I, too, was affected enough by my graduate training in political science that I am suspicious of the merely antiquarian. Law school reinforces that suspicion.

At any rate, if you or someone you know has a good special collections infrastructure and would like to have these books, let me know and we can talk about it.

BURGER ON INTERNMENT?

Eric Muller reminds his readers that 65 years ago yesterday, President Roosevelt signed executive order 9066, the legal foundation for the internment of Japanese Americans during WWII.

If you click on the image below, you can see a margin note that Warren Burger wrote on page 64 in his copy if R.L. Bruckberger's Image of America (1959). It's a little cryptic - the note reads, simply:

E W
Jap-Am
1941

and the passage next to it is marked with a margin line. But the text and the note together operate as a critique of Internment, I think. The context for Bruckberger's argument on this page is a lengthy comparison between the alleged pragmatism and caution of Jefferson compared with the intemperate, impatient utopianism of Saint-Just. The passage reads:


"Saint-Just thought he loved mankind, yet on a mission to Stasbourg he ordered the mass arrest of all suspects and when it was brought to his attention that he had undoubtedly imprisoned many innocent people among the guilty, he replied, 'You may be right about a few of them, but there is grave danger and we do not know where to strike. Now, when a blind man is looking for a pin in a heap of dust, he gathers up the whole heap.' But that 'dust' was men and women, French, like Saint-Just himself."

Perhaps Burger's note intends to reference the critique of Saint-Just in this passage: that his treatment of individual human beings belied his profession of love for human kind. The 'dust' in the case of the internees was also men and women, many of them American, like FDR himself.

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2-21: In comments, Prof. Muller reads the margin note as a criticism of Earl Warren rather than of Internment itself, which makes a lot of sense.

WARREN BURGER ON JUDICIAL CAUTION II

Below is the text of the most extensive note I found in the books from Warren Burger's library that I bought in the fall. The note fills up page 16 of Samuel Lubell, The Hidden Crisis in American Politics (1970). It expresses a familiar conservative distrust of courts as a forum for social change. Here is a scan of the full page:





The text reads as follows:

Our national trait - 'do it now', 'hurry up' or 'impatience*' that made us preeminent in technology has been our weakness in the political process. This is manifest in

-A resort to the judicial process as a 'cure-all' for the slowness of the legislative process

-resort to the judicial process because of the slowness of the amending process (const.)

-'liberal' reliance on the Supreme Court as the 'problem-solver' thus refuting the very essence of the fumbling-bumbling character of the democratic process. This is an impatient turning to the Platonic Guardians Learned Hand feared. Frankfurther + Black saw this after a decade + more of 'flirting' with the Platonic Guardian approach.

* See Sp. Bar of NY Feb 1970
Ded. Sp. Holmes Bust, NYU. 1970
Sp. ABA. 1969, Aug

The text on the facing page (17) is reproduced in my post from Monday, 2/12, and here is a scan of the note:




Combined with the note from Bruckberger that I discuss in last Thursday's post (immediately below), these texts present in encapsulated form a conservative critique of the judiciary as a site for social change. Burger hints at a belief that social change should be resisted by political institutions - it's "impatience" that causes a resort to the judicial process, not something benign or morally defensible, not something laudible like a sense of injustice. Social change should be slow: "Man does not leap over centuries."

But the resort to the judiciary is also indicative of political weakness for Burger. Does he take legislative intertia and the high bar of Article V's amendment procedure as political givens? Put another way: if our political process is weak, as Burger notes, is that weakness primarily a function of unhealthily expansive demands or unduly restrictive institutions? My sense is that Burger would choose the former, but I'm not sure.

WARREN BURGER ON JUDICIAL CAUTION

In the inside rear cover of R.L. Bruckberger's Image of America (1959), Warren Burger writes a note, dated 6/17/60, that expresses in rather poetic form a conservative understanding of judicial restraint. Burger had been a judge on the DC Circuit since 1956. He writes:

"In the development of the law judges, even more than legislators who afford the means and speak directly for the people, must accept progress step by step, less than Utopian. The mystics and romantics dream good dreams but they want to leap over centuries. Man does not leap over centuries, he crawls over days and nights and over painful hours."

Note that in Burger's handwritten note what begins as a description of the judicial role slides into a connection between judging in its cautious aspect and the human condition as such. If the slowness of human development means that political activity should always be cautious, then judicial incrementalism seems to be the most appropriate form of political activity (broadly conceived, of course; I am not saying that Burger argues that judges are self-consciously engaging in political activity).

This is the same book in which Burger noted his objection to Jefferson's call for a spirit of continuous revolution, as I noted here.

SECOND STORY BOOKS SIGN

This blogger went to Second Story Books in Rockville and was both "intrigued" and "appalled" at the Warren Burger library sale. She even took a picture of the store's sign.

Via De Novo

Scroll down and click through the tags for my posts on marginalia I found in the books I bought there.

WARREN BURGER ON EISENHOWER, KENNEDY AND JOHNSON

In the collection of Burger marginalia that I happened upon, there are two places where Warren Burger reveals his judgments about postwar U.S. Presidents. The observations are sketchy and predictable in some way: Eisenhower tapped into a need for authority, JFK pursued laudable goals and LBJ tried to outdo him.

In the margin on page 165 of H.A. Overstreet's The Mature Mind, reprinted below, Burger latches on to Overstreet's description of the social function of the postwar Presidency - the office serves as a focal point for a desire for authority. And Burger apparently believed that Eisenhower was able to take advantage of that desire. Overstreet's description of the postwar craving for authority is far from upbeat; what Burger thinks is, of course, ambgiuous.

In the text, Overstreet seems to argue that the harrowing experiences of WWII created conditions for a mature outlook - one that is emancipated from old certainties. "We are not so sure that we have all the answers." But there is another possibility as well - that the loss of certainty through war and depression will also lead to a search for new certainties. "Yet the old immaturities linger on. So many of them linger on, in fact, that we stand in grave danger of having even our new humility go to waste: in rescuing us from cocky childishness, it may land us merely in a submissive childishness; it may merely send us looking for some new authoritative 'parent' on whom we can rely."

And here, in the margin, next to the last line, Burger writes "DDE to a degree." Given the postwar context of Overstreet's remarks, it's reasonable to conclude that DDE stands for Dwight David Eisenhower, Burger's main political patron, the person whose nomination Burger worked to secure, and the person who appointed him to the Justice Department and then to the DC Court of Appeals.

In a second note, Burger assesses Kennedy and Johnson briefly. The text of the note seems to be meant as a footnote to the a longer note that he writes on the facing page of Samuel Lubell's The Hidden Crisis in American Politics (1970). The asterisk seems to refer to the word "impatience" on page 16.

The text on page 17 reads: "*This is what I wrote re LBJ's acceleration of JFK's promises of 'unfulfillable expectations.' JFK's were remotely possible and good. LBJ had a neurotic urge to outdo JFK. Whatever Jack promised, LBJ would do better. Ltr to Amos Peaslee [?] 1963-4?"

Burger is apparently remembering the text of a letter that he wrote to someone in 1963 or 1964, probably after Lyndon Johnson assumed the presidency after John F. Kennedy's assassination. The letter might be to Amos Peaslee (1933 - 1989), who was an assistant U.S. Attorney in the Southern District of Manhattan in the 1950s.

FROM THE FOXINGTON POST EXPRESS

Your morning dose of propaganda, with menacing picture, from this morning's Express, picked up on the Red Line.

Please stop it.