Beware the Straussians! Intellectual bloat, windy and self-serving re-descriptions of the past, the political present and predictions on our collective, benighted future, by the stern guiding hand of the self-appointed Philosopher King! One need only read Mr. Fukuyama’s ‘The Decay of American Political Institutions’ in which he attacks the whole of the America’s melorist politics of the 20th Century. A sample of Mr. Fukuyama’s ex cathedra pronouncements, on Brown v Board, as an example of his concern for the proper functioning of American State institutions:
So familiar is this heroic narrative to Americans that they seldom realize how peculiar it is. The primary mover in the Brown case was the National Association for the Advancement of Colored People (NAACP), a private voluntary association. The initiative had to come from private groups, of course, because state governments in the South were controlled by pro-segregation forces. The NAACP pressed the case on appeal all the way to the Supreme Court. What was arguably one of the most important changes in American public policy thus came about not because Congress, as the representative of the American people, voted for it but because private individuals litigated through the court system to change the rules. Later developments, like the Civil Rights and Voting Rights Acts, were the result of congressional action, but even in these cases enforcement was carried out by courts at the behest of private parties.
No other liberal democracy proceeds in this fashion. All European countries have gone through similar changes to the legal status of racial and ethnic minorities, and women and gays in the second half of the 20th century. But in Britain, France or Germany, the same results have been achieved through a national justice ministry acting on behalf of a parliamentary majority. The legislative rule changes might well have been driven by public pressure, but they would have been carried out by the government itself, not by private parties acting in conjunction with the judiciary.
The idea and practice of ‘redress of grievances’ as legitimate, is subject to Mr. Fukuyama’s ideological myopia. Compare Mr. Fukuyama’s extensive comment on Brown to Learned Hand’s ‘evolution’ on Brown, that was his realization that ‘Judicial Restraint’ and the proper functioning of the legislative branch, in reforms like Brown, were of more import than marking the end of the legitimacy of segregation, as a legal imperative. See this informative review of ‘Reason and Imagination: The Selected Correspondence of Learned Hand’ by Lincoln Caplan in the December 5, 2013 edition of The New Your Review of Books (Behind a pay wall):
That ‘proper functioning of a legislature’ as the vanguard of reform was never going to happen! But the issue of ‘Judicial Restraint’ gave a white judiciary an intellectual/legal rationale for the status quo. And for the manifest injustice of ‘separate but equal’, visited upon generations of black children, since the collapse of Reconstruction. The Federalist Society and its political allies called Brown ‘sociology’, willfully forgetting this declaration by the Founders:
‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’
Like the Good Straussian Mr. Fukuyama writes History Made To Measure, so his collection of cliches beginning with the ‘International Liberal Order’, that in reality is a ‘Neo-Liberal International Order’ in collapse since 2008. That was the fertile ground that gave Populism and its leaders like Trump, Farage and Le Pen their raison d’être. Much more to be said about this self-serving intervention!
Addendum, added November 12,2016 1:37 P.M., a long quotation from that New York Review of Books essay by Lincoln Caplan, as referred to in my original post.
For some very informative background on the notion/practice of ‘Judicial Restraint’ and the part this idea played in the career of Learned Hand. And his ‘evolution’ on the question of Brown v. Board, from support to opposition, see this New York Review of Books essay by Lincoln Caplan. He reviews Reason and Imagination: The Selected Correspondence of Learned Hand: 1897–1961 edited by Constance Jordan, with a preface by Ronald Dworkin.(Behind a pay wall)
Hand was a career-long champion of strict judicial restraint. His fundamental belief was that, in our American democracy, judges and especially justices of the Supreme Court should defer to Congress and uphold statutes unless they served no practical purpose, because he doubted “the wisdom of setting up courts as the final arbiters of social conflicts.” James Bradley Thayer, a Harvard Law School professor and favorite teacher of Hand’s,3 articulated this guiding stricture. The standard-setting liberal Justices Oliver Wendell Holmes Jr. (Hand’s hero) and Louis Brandeis relied on this view in the first decades of the twentieth century when they dissented from Supreme Court rulings that struck down social legislation because, the Court’s conservative majority thought, the statutes were anti-business.
In 1958, when Hand was eighty-six and called by The New York Times “the most revered of living American judges,” he summed up his case for strict restraint in The Bill of Rights, the prestigious Holmes Lectures at Harvard Law School, delivered over three nights. By then, Earl Warren had been chief justice of the Supreme Court for five years. As Gerald Gunther explained, “The achievement of social justice through invocation of the Bill of Rights and the Fourteenth Amendment was well on its way to becoming the justices’ central preoccupation.”
Hand’s lectures made the case for judicial enforcement of them only “on extreme occasions.” He contended that there was no basis in the text of the Constitution or in its history for the Supreme Court to hold acts of government unconstitutional, especially statutes passed by Congress and state legislatures.
It was not, he wrote, “a lawless act to import into the Constitution such a grant of power,” for “without some arbiter whose decision should be final the whole system would have collapsed.” But justices and other judges, he advised, should use this power only when that was essential—when a governmental act violated the clear “historical meaning” of the amendments in the Bill of Rights—or they would function as a super-legislature. “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians,” he said famously, “even if I knew how to choose them, which I assuredly do not.”
The lectures were an attack on judicial activism but also the Warren Court. In 1954, Warren had led the Court to the unanimous Brown v. Board of Education ruling. Every justice then on the Court, as the legal historian Michael Klarman noted, “had criticized untethered judicial activism as undemocratic.”4 But the justices recognized that America was a transformed nation in its views about race and that history compelled the Court to find segregation of public schools unconstitutional.5 In a short opinion, Warren stated that principle.
Among liberal and centrist legal thinkers, the question was how broad a principle of equality the Court had actually stated. In his lectures, however, Hand staked out a very conservative position. The Brown ruling was unacceptable because it was second-guessing of legislative choices by the states, even though that put Hand on the wrong side of history.