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.

WARREN BURGER ON DESEGREGATION

I wasn't researching Warren Burger when I came across these books last fall; I just happened to find them while Thomas Nephew and I were killing a little time after some campaign volunteer work. These scattered notes in a handful of mostly obscure books do not reveal anything like a profound intellectual development on Burger's part. But they do provide a glimpse into some of Burger's thinking on a few topics - or at least his style of thinking when he is not, or at least not apparently, writing for an audience.

Until the Burger archives are opened up, aside from those papers of his colleagues that have been cleared for public view (like Harry Blackmun's), there's probably not much else in the way of a comparable collection of documents for researchers interested in describing Burger's private thoughts. That's not a project that interests me too much, but it seemed to me that it would be a shame if the opportunity for such a project were lost to the whims of the clientele in a second-hand book shop.

At left is a margin note that Burger left in Samuel Lubell, The Hidden Crisis in American Politics (1970), page 92. Given the extensive underlining, this seems to have been a work that interested Burger greatly. Here, Burger is taking issue with Lubell's description of the failure of school desegregation efforts in the 1960s.

Lubell writes: "Officially the goal remains intact, and school busing and other efforts still are pushed, but effective integration appears to have collapsed. Streets on which whites and blacks have lived together for any length of time are rare." Burger writes, simply, "Not so." Was he reading this book while he wrote the Supreme Court's school desegregation opinion in Swann?

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).

WARREN BURGER'S MARKS IN DEWEY ON JEFFERSON

The first image below is a scan of a page from Warren Burger's copy of The Living Thoughts of Thomas Jefferson (1940), a volume that was edited by the American philosopher John Dewey. There are three pages with extreme and apparently non-referential marks. The first page is 90-91; the other example, at page 98, is similar. The second image below is a close-up of the middle of page 90. Perhaps Burger was sharpening his pencil on this page. Perhaps he - or someone else - was simply doodling.







The irony involved in the moderate Republican Chief Justice owning a defaced copy of a collection of Thomas Jefferson's works is too strong to leave unmentioned.

Unlike the other books in the collection (see my post on Burger and the bomb, below, for example), this book does not contain any extensive individual comments on particular passages. Aside from the two pages above where the marking is extreme, there are a few isolated lines in the margins throughout the volume

The only passage where Burger seems to have taken particular exception in Jefferson is on page 21, where he corrects Jefferson's sexist language. This script is almost certainly his - compare it to the writing on William and Mary's online exhibit page, for example.



The inscription on the inside front cover is in pencil, in what appears to be the same script as the careful, printed margin notes, also in pencil, found in the rest of the books in the collection. The final images below are a scan of the inside front cover and a close-up of the inscription itself. At least one other book in the collection has the same printed inscription. Most of them also have his book plates.

WARREN BURGER ON THE BOMB

Two margin notes in my collection of books from Warren Burger deal directly with the threat of nuclear war. One is found on page 115 of H.H. Overstreet, The Mature Mind (1949), at the end of a chapter titled "Mature Insights Lost on Immature Minds," which discusses the disjuncture between scientific capacity and moral capacity. The full page is below.


Here is a close-up of the note itself, which reads:


"Similarly Mans' physical growth, in physics, chemistry, mechanics, and related science has far outstripped his understanding - the collective maturity of Man is centuries, perhaps, behind his ability to control the forces he is capable of creating. Thus centuries of unceasing war is now capped by the H-Bomb that in the words of the 91st Psalm, 'wastes at noonday'

The arrow is pointing to text from Overstreet on the facing page (114) that reads: "the psychological growth of man must keep pace with his physical powers; every increase in power must be matched by an increase in understanding."

There are two kinds of writing in Overstreet: marks in ink, including a tight cursive script that appears in at least one other book in the collection; and the printed pencil script that I have reproduced in this post and in the post on Parrington, below. The cursive script matches known examples of Burger's handwriting.

Burger seems to have read Overstreet at least twice and made two series of marks in the text - pen and pencil marks sometimes appear on the same page. This is not surprising: throughout the margin notes he seems concerned with the general problem of moral and political development. This concern expresses itself (in at least two places) in criticisms of Democrats. More on that in a later post. But as befits a Republican of the pre- or at least non-Goldwater variety, his criticism is probably more anti-populist than anti-Democrat. For his doubts about the red-baiting tactics of McCarthy, see my first post on this collection, here.

Warren Burger was also an artist, as this web page shows (created by the special collections folks at the William and Mary Library, where the Burger papers are under seal until 2026). My collection has two sketches in them, one of which is a pencil sketch in the margin of H.R. Hayes, From Ape to Angel (1958).

The sketch is next to a passage on page viii that begins with the Garden of Eden myth and ends with a warning about nuclear annihilation: "By eating the apple, Adam was destined to become one of the angels. But the apple was not an elixir. It opened man's eyes and perhaps symbolized the dawn of consciousness, but the job of civilizing himself was his own problem. As we look at man's present plight, we see that if he is to become as one of the angels, he has a long way to go. If he fails to push on, he may soon find himself extinct with the protoapes from which he sprang."

WARREN BURGER, MARGIN NOTE ON ORDER

In the inside rear cover of his copy of Vernon Parrington's The Romantic Revolution in America: 1800-1860 (1927), Warren Burger wrote the following:

"After much of this reading, I am certain of but one thing - there must be order in the relations of men as there is order in the universe - not as exact, not as regular, not as inflexible, but order none the less.
Just as surely, this order must be by consent of those regulated. In a modern society, what form of order is the most tolerable?"

I am not sure what else might be included in "this reading" for Burger, but I will hazard a guess. In this volume of Parrington, Burger marked only a few pages. Many of the margin notes that I have in other volumes are written in a similar script, however, which suggests that they may have been written at the same time. Based on internal references and the publication dates of the books in question, I am guessing that these notes were written in the 1970s at the earliest, and some of them as late as 1980.

In addition to Parrington, the books are: H.R. Hays, From Ape to Angel (1958), Samuel Lubell, The Hidden Crisis in American Politics (1970), R.L. Bruckberger, Image of America (1959), and H.A. Overstreet, The Mature Mind (1949). Bruckberger contains a personal letter dated March 3, 1980. A few other books in the collection mainly have writing that is different: a tight cursive script in both pen and ink. Here, the printing is deliberate, all in pencil, and the short passages of reflections tend to circle around general problems of American democracy.

PS: for an earlier post of mine on Burger's margin notes from the same collection, see here.

WARREN BURGER'S MARGINALIA - ON MCCARTHY, COHN AND SHINE [SIC]

Late last month, I bought a handful of books from former Chief Justice Warren Burger's library. They are being sold at the Second Story Books warehouse in Rockville, Maryland. There are still several hundred books with his nameplate in them - everything from Smithsonian coffee table books to gifts from the public (including a Bible inscribed with the words, "Sin will keep you from this book; this book will keep you from sin").

Several of the books I bought have marginalia in what appears to be Burger's handwriting. Here's one example:

The text is H.H. Overstreet, The Mature Mind (1949), and the passage reads "[P]olitics has, by common practice, become a 'game' in which men are expected to behave like grown-up children. In no other major area of life has immaturity enjoyed such good standing." Next to it, presumably as an example of political behavior that he thinks illustrates contemporary habits of immaturity, Burger writes three names: "McCarthy, Cohn and Shine."

The reference is obvious. Burger was probably reading the book in the early 1950s while Senator Joseph McCarthy and his aides Roy Cohn and G. David Schine were in their red-baiting heyday. Burger spells Schine's name incorrectly, but it's not an uncommon mistake.

It seems fairly clear that the margin note reflects contempt for McCarthy. This is particularly interesting in light of the fact that Burger's first argument at the Supreme Court, while he was working at the Justice Department, was for the government's side in the case of Dr. John D. Peters, a Yale professor who had been dismissed from his job on suspicions of disloyalty. (See an account of Peters's travails here.) Private thoughts and public role appear to have been in some conflict. It is not at all surprising that this would be so - and not knowing anything about Burger's biography I had no reason to suspect otherwise - but here is some evidence that confirms it.