D.C. Circuit Judge Janice Rogers Brown has long been controversial since her nomination was opposed by many for what were viewed as extreme view as a member of the California Supreme Court. She was finally confirmed in a deal in the Senate that many denounced as a surrender by Democrats. Now Brown has used an opinion to denounce “powerful groups” and courts for limiting “Cowboy capitalism” that she says has been “disarmed” in America.
The diatribe came in Hettinga v. United States, where the court rejected Hettingas that contribution requirements applicable to all milk handlers constituted a bill of attainder and violated the Equal Protection and Due Process Clauses. In the opinion below, Brown and conservative colleague David Sentelle wrote to express sympathy with the Hettingas and their “understandable” “sense of ill-usage.” The central point of the concurrence appears to be a desire to express dissatisfaction “with the gap between the rhetoric of free markets and the reality of ubiquitous regulation.” She then added:
“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
The opinion has raised questions of the propriety of such statements in dicta. Opinions are not meant to be opportunities for judges to hold forth on their views of the proper course of political and legal trends. At the time of her nomination, then-Senator Barack Obama took to the floor to join those denouncing Brown:
Justice Brown has shown she is not simply a judge with very strong political views, she is a political activist who happens to be a judge. It is a pretty easy observation to make when you look at her judicial decisions. While some judges tend to favor an activist interpretation of the law and others tend to believe in a restrained interpretation of the law providing great deference to the legislature, Justice Brown tends to favor whatever interpretation leads her to the very same ideological conclusions every single time.
I do not see how this statement falls within any reasonable view of appropriate judicial opinion writing. It is less dicta than diatribe. What do you think?
Here is the opinion: 11-5065-1368692
“I guarantee that the overwelming majority would not pay a dime for the quality of service and products government creates or maintains and only do so because of force and coersion. Everything that govenment does, the free market has and can do better.”
Really? Like raise a military? Build a Coast Guard? Like build the interstate highway system? Like go to the moon? Like raise people out of abject poverty other than the “owning” class? Build school systems for public use? Libraries? Like protect consumers from adulterated products and snake-oil disguised as medicine?
Because those are all things the free market has had (sometimes many) chances to do at this point and failed miserably.
That’s the problem with absolutist thinkers like Libertarians and their Goddess Ayn Rand. You think all problems are fixable by one tool when they are not. Not all problems are equal, not all solutions are equal and not all tools are equal. Black and white thinking is destructive in an analog world. “We” as supposed to be the government in our country according to the terms of the Constitution, but since “We” no longer control the government, the people turning this country into a steaming pile of shit are the 1% oligarchs whom you act as water carrier, intentional or not. The fault is not government’s. Government is a tool. The fault is in the hands of the user. And in this instance, I do mean “user” in every context of the word.
SwM,
your post April 17, 2012 at 3:53 pm
Wow. Those are some really interesting figures!
DonS, I wasn’t this partisan at one time although I have always leaned to the democratic side. I remember the days of the good government type.republicans. They don’t seem to exist in the modern republican party.
“All taxation is unfair, unjust, repressive and unethical. Just because one cannot comprehend how a society would work without taxation does not justify it use.”
Polemic and in denial of the reality of how governments function. Government is shared infrastructure. The way to pay for that is to share the costs, preferably equitably. The way this money is collected isn’t POS transaction like consumer goods, but rather through . . . taxes. Those things have have been in existence since government was invented. They are not only necessary and legal, but the most rational way to pay for the cost of government.
I guarantee that the overwelming majority would not pay a dime for the quality of service and products government creates or maintains and only do so because of force and coersion. Everything that govenment does, the free market has and can do better. You living in the matrix. From the Green Mountian Boys (a militia group) who helped fight and win the American Revolution to composting toilets, government will screw up the best nation in the world and turn it to ****.
Swarthmore, yes, I know you’re not one of the bi-partisan ones : )
Don S, You know I am not one of the bi-partisan ones. ha!ha! The GOP war on women certainly fiinished off that illusion unless one thinks it does not exist, and the probes are just a figment of the imagination.
“Gene, The United States could certainly be considered a libertarian nation from about 1870-1914.”
Could doesn’t mean is or was. The items you list all arose out of necessity, real (like Federal income tax) or strictly political (the war on drugs), and/or changes in circumstances (abandoning the gold standard). Items of real necessity are indeed necessary. Those that are strictly political are not. How you handle a change in circumstance, realistically or politically, is another issue. Take the war on drugs as a prime example. Drug use is a real actual problem. But how it was responded to was politically which, since it is a health problem and not a political problem (unless you’re a drug or chemical company looking to quash cheap clean natural competition for your products like DuPont with nylon and hemp or various makers of synthetic opiates versus natural opiates) is like using a hammer to drive a screw. Wrong tool for the job. The rational public policy decision – especially given the lessons of Prohibition – was to legal and tax drugs use for recreational purposes and use that money to treat and educate about the resulting health problems they create. Individual liberty is protected, the problem is addressed in a manner amenable to actually mitigating the problem and industry isn’t catered to for their profits and the personal gain pols and owners/managers get against the best interests of the public.
Poll: Christie Leads Republicans, Democrats Want Clinton In 2016
A new national survey from Public Policy Polling (D) shows that the perferred matchup for partisans in a 2016 presidential matchup is a contest between current Secretary of State Hillary Clinton and New Jersey Gov. Chris Christie (R).
On the Democratic side, the battle isn’t close – Clinton gets 57 percent of the vote, with current Vice President Joe Biden the only other candidate in double digits with 14. Christie wins a trial heat among Republicans in a squeaker, 21 percent of the total, followed by former Florida Gov. Jeb Bush and former Arkansas Gov. Mike Huckabee at 17 percent each, former Pennsylvania Senator Rick Santorum at 12 and Sen. Marco Rubio (R-FL) at 10 to round out those GOP candidates in double digits.
Reported by Kyle Leighton TPM
Senate Republicans Block Debate On Buffet Rule
“On the eve of Tax Day, Senate Republicans voted to block a measure that would have made mega-investor Warren Buffett and millionaires like him pay at least a 30 percent tax rate. Although Buffett endorses such a rule, Senate Republicans call it an election year gimmick. Their Democratic counterparts insist it’s all about fairness. ” NPR Bipartisanship seems to be nearly impossible these days but especially when it is concerns taxes and women’s healthcare.
She’s not wholly incorrect… after 1850 monopoly capitalism began to dismantle entreprenurialism until, after 1950, even entrepreneurs had become tools of the industrial system (offices buy industrial goods, a ma and pa store is stil seling industrial goods).
What the conservatives don’t understand is that, if they want their technoloy and cheap industrial goods, they can’t also have entreprenurial competition. A competition must be unpredictable to be fair, but these people want stability and consumers want stores to be well stocked. Industrial firms tend towards oligopoly. That’s just how it is. Even the anarchists in the 1850’s saw that Communism was just “state capitalism.”
Industrial firms seek to undermine market conditions at every opportunity.
I never said the government was perfect. It wasn’t. I’m just pointing out that the domestic policies for the average U.S. citizen was libertarian in nature and it was a period of immense productivity and growth. As for your comment about a subsistence level working class, it’s not true. Common factory workers were paid extremely well, and without unions. Henry Ford’s workers that built the model T were the best paid factory workers in the world. The steel and oil workers were paid well too. Measured in today’s dollars they were paid much more than factory workers in America today.
So if I taxed you 100% of you income in exchange for a glass of potable water you would be happy. Your actuaully trying to tell me that we have potable water because of government? We have potable water because of the indutrial revolution that was created duing a time of low taxes and regulations. GO figure. Funny how some people just can’t understand how things could work when one group is not allowed to steal from others.
“The United States could certainly be considered a libertarian nation from about 1870-1914. During that time there was no federal income tax, no federal corporate tax, no fiat currency, no central bank, no fractional reserve banking, very few federal departments and agencies, very few federal regulations, no war on drugs, and an intact constitution which was usually respected in court. It was one of the greatest periods of economic growth social freedom in the history of the world.”
And what was the economic driving force — the genocide of the indigenous and the confiscation of their lands and resources, the subjugation of blacks, hispanics, and immigrants, and a subsistence level working class.
Cheap (or free) lands, cheap (exploitable, throw-away) labor. All profits were privatized, most costs publically subsidized.
The Romney/Ryan plan — back to the good old days!
Which leads me to go a little OT. Alright, a lot. Over at TPM a story was posted on Obama getting away with “legal moves” that Bush never could. Naturally, being TPM, commenters are all over the author for bring up ‘bogus’ issues.
http://tpmmuckraker.talkingpointsmemo.com/2012/04/under_obama_public_loses_interest_in_guantanamo.php?ref=fpb
I’m very much liking the prevailing recognition among most here that getting stuck in the Repub/Dem paradigm is a huge distraction, and not one that begs for a ‘bipartisan’ solution . . . at least as big a distraction.
An aside about too high taxes —
A candidate at the podium was asked at what point are taxes too high. The candidate stepped away from the podium, walked across the stage and down the steps, and took a drink from a nearby water fountain. After returning to the podium the candidate answered, “I’d be willing to pay a lot more in taxes than I do now just to be able to drink potable water whenever I want.”
“Throughout history, there has never been such a political/economic creature as a Libertarian/laissez-faire nation although nations have come and gone since the advent of those ideals.”
Gene, The United States could certainly be considered a libertarian nation from about 1870-1914. During that time there was no federal income tax, no federal corporate tax, no fiat currency, no central bank, no fractional reserve banking, very few federal departments and agencies, very few federal regulations, no war on drugs, and an intact constitution which was usually respected in court. It was one of the greatest periods of economic growth social freedom in the history of the world.
http://thinkprogress.org/justice/2012/04/16/464731/two-federal-judges-suggest-all-labor-business-or-wall-street-regulation-is-unconstitutional/
Rcampbell,
Excellent post……
ORC for CNN (PDF). April 13-15. Adult Americans. ±4.5%.
I’d like to know whether the following statement describes or does not describe the way you feel: “The present tax system benefits the rich and is unfair to the ordinary working man or woman.”
Describes: 68
Does not describe: 29
Do you consider the amount of federal income tax you have to pay as too high, about right, or too low?
Too high: 45
About right: 50
Too low: 3
All taxation is unfair, unjust, repressive and unethical. Just because one cannot comprehend how a society would work without taxation does not justify it use. Taxation is a tool of the oligarchy to control the redistribution of wealth into their hands and it has been quite successful in recent years; hense the stagering differential between the rich and poor and it growing because of ignorant and complicity towards its enforcement.
I think I’m taxed pretty heavily at the federal level, Raff.