NOT REALLY IRONY

Yesterday I wrote that it was ironic that Warren Burger owned a defaced copy of an anthology of Thomas Jefferson's writings. I tried to add a footnote to that post, but Blogger wouldn't let me for some reason (Blogger also seems to be eating comments; sorry about that). At any rate the point of that footnote was that the irony doesn't run very deep. Aside from the fact that Burger spent a great deal of his public life on the commemorative and celebratory side of things, there's nothing that would really lead one to suspect that he had a fondness for Jefferson in particular, or that his tenure as a judge and as Chief Justice would have given rise to such fondness.

One margin note, in fact, highlights a theoretical disagreement between Jefferson and Burger - one that is perhaps not surprising but is interesting nonetheless. On page 75 of R.L. Bruckberger's Image of America (1959), next to a passage that reproduces Jefferson's famous quote, "I like a little rebellion now and then. . . .The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive. It will often exercise when wrong, but better so than not to be exercised at all," Burger draws a bracket and writes, "Little Rock?"

Burger is surely thinking of resistance to the court ordered desegregation plan for the Little Rock public schools, which resulted - among other things - in Eisenhower's calling out the National Guard and Cooper v. Aaron's strong words about the requirement that state officials obey the constitutional commands of Brown v. Board of Education. But putting aside the institutional interest that Burger might have in post-Warren Court judicial supremacy (see Larry Kramer's essay explaining his case for "popular constitutionalism" from the Boston Review (2004), here), it should also be clear that the man who wrote that "there must be order in the relations of men as there is order in the universe" would be uneasy with Jefferson's theoretical defense of rebelliousness (see my "margin note on order" post, below).