I had a dream about Harriet Miers the other night. (Yes, yes, I know: Cooper, get a life.) The dream — not my narrative unconscious at its most exciting, I'm afraid — involved George Bush withdrawing her nomination. That's all I remember. However — and here is where this transcends a dreary "I had a dream that had nothing to do with sex" anecdote — I woke up in a bad mood. (You think I'm making this up. I assure you, if I were making this up it would be way less banal.)
Why, I wondered to myself, would such a dream be a bad dream? After all, I've already weighed in on the Miers question — I believe I dubbed her a "joke."
Well, upon reflection, I've decided that she's a good joke. A joke that deserves to be told. A joke at which, I strongly believe, we shall laugh last.
First of all, let's consider what would have been the least funny nomination. Ladies and gentlemen, I present to you Janice Rogers Brown, very much on the shortlist, who is quoted as deprecating Franklin Roosevelt's New Deal as "our own socialist revolution." (I often wonder what people who hate the New Deal think of fondly. The Great Depression? The age of the robber barons?)
It's worth concentrating upon those words, which would have done McCarthy proud. Now, the thing about a "revolution," when appended to the word "socialist," is that it tends to imply barricades and streets awash in blood. Especially in America, where the word "socialist" really means "communist" to the average non-socialist. The New Deal was, of course, bloodless, not a revolution, and not really socialist. It was, however, civilized.
For originalists like Judge Brown, of particular interest is "freedom of contract" — which, though not in the Constitution, is treated as if it were not only there, but a very pillar of our civic structure. The notion of freedom of contract comes from the Lochner decision of 1905, in which the Supreme Court decided in favor of a bakery owner, Joseph Lochner, who felt that a New York law limiting his bakers to a sixty-hour work week was unconstitutional.
Lochner challenged the constitutionality of his conviction on the grounds that it violated his rights under the Fourteenth Amendment to the Constitution. In a 5-4 decision, a majority of the United States Supreme Court agreed with him, ruling that the New York law interfered "with the right of contract between the employer and employees concerning the number of hours in which the latter may labor."