Democracy Dies in Darkness

The Volokh Conspiracy | Opinion

Yet more dubious claims in Nancy MacLean's 'Democracy in Chains'

July 6, 2017 at 2:18 PM

In my last post, I noted that Nancy MacLean claimed with regard to George Mason University's law school and its most influential dean, Henry Manne, that "Manne's law school would stake out a position on the side of corporations against 'consumerism and environmentalism,' two causes that had grown in popularity and influence since the 1970s. His faculty would advocate the superiority of 'unregulated corporate capitalism' and assert, as Manne himself argued in print, that companies needed liberation from 'the distortions created by government intervention.'"

I pointed out that MacLean's footnoted sources for asserting that Manne wanted the George Mason Law School to  "stake out" particular political positions are as follows: John Saloma, "Ominous Politics: The New Conservative Labyrinth" (1984), and M. Bruce Johnsen, ed., "The Attack on Corporate America: The Corporate Issues Sourcebook" (1978). The latter source, I recounted, published eight years before Manne became dean at GMU, stated Manne's personal position on "unregulated corporate capitalism," but never suggested that he sought to impose this on a law school.

I have since received the relevant page cited in "The Conservative Labryrinth." Here it is: TN 379209.doc

The page in question describes the fact that Manne ran economics programs for judges through the Law and Economics Center at Emory University and the University of Miami. It doesn't remotely support what MacLean wrote about Manne and the law school. For what it's worth, and as befits a program aimed at federal judges, Manne's programs were truly focused on teaching judges economics, not ideology. For example, he paired the famous liberal economist, Paul Samuelson, with Milton Friedman when putting together his faculty. So not only does the reference to LEC programs fail to support MacLean's point, if anything it undermines it.

Meanwhile, toward the very end of the book, we find this sentence: "Faculty at the George Mason School of Law, now aptly named after Justice Antonin Scalia, are urging [the Supreme Court] to fire [a loaded gun] by going back to its pre-1937 jurisprudence, when the justices routinely [sic] struck down government action to advance popular economic security or social justice goals." In support of that assertion, she cites my book "Rehabilitating Lochner." Nowhere in the book do I suggest that the court go back to its pre-1937 jurisprudence, nor do I take any other normative position on constitutional jurisprudence. A minor point, perhaps, but at some point, given all the other documented flaws with the book, one wonders whether one can trust the footnotes to support the text.

It's also indicative of a lack of understanding of the broader subject matter that MacLean thinks both that George Mason faculty support a return to the limited government jurisprudence of the pre-New Deal period and that the law school is "aptly named" after Scalia, who of course was strongly opposed to the court's pre-1937 due process jurisprudence on economic and personal liberty. Nor was Scalia inclined to return national power to anything remotely approaching its pre-1937 constitutional limits, as his vote to uphold prosecution of non-commercial growing of marijuana reveals. But MacLean seems to believe that Scalia, like Edwin Meese, was a secret member of the "libertarian cadre."

*It's true that the segregation was imposed in many Southern jurisdictions that were at best imperfect democracies, as African Americans were largely disenfranchised. But the defendants in Brown included jurisdictions that aren't subject to that criticism, such as Topeka, Kan., where the majority clearly supported segregation.

David Bernstein is the George Mason University Foundation Professor at the Antonin Scalia Law School, George Mason University of Law in Arlington, VA. His latest book, Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, was published in November.

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