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
In the animated movie, Shrek, the diminutive Lord Farquad wanted to become king but had to rescue a maid held captive in a tower as part of the traditional, fairy-tale arrangement. So he staged a competition in which his knights would fight each other for the privilege of getting to slay the dragon and rescue the imprisoned princess for him. Putting on his most sincere (looking) expression of concern for the danger involved, he piously intoned:
“Some of you may die, but that is a sacrifice I’m willing to make.”
I always think of Lord Farquad whenever I hear of President Obama timorously flirting with the vague possibility of conceivably considering a slightly more “populist” appeal to the left he has so brazenly betrayed. With the self-styled “bipartisan,” “triangulating” Democrats for champions, the working poor may die — literally and economically — but since the neo-feudal Republicans would just kill them off faster, “Dying Slower with the Democrats” would seem the operative slogan for the next three winning presidential campaigns. And since the Republicans get their desired death of government of, by, and for the people — either way — they’ll bitch and moan a bit about “losing” but will grudgingly accept the sacrificial offerings (like “free trade” agreements, corporate subsidies, and the elimination of the Glass-Steagall Act, etc.) served up to them by the “winning” Democrats.
America desperately needs a left-organized labor party implacably opposed to Orwellian permanent war and equally dedicated to jobs, income, education, health care, and retirement for the people. The Democratic Party no longer qualifies as such an organized movement. “Big Government” means Big Corporations, Big Prisons, and Big Militarism. Demobilize and drastically downsize those, and whatever government remains will have more than enough resources to take care of important matters.
“Cowboys” have nothing to do with any of this.
‘we will next witness “the First Woman President” circus distraction ‘ ‘ (mm)
Allow me to interject an FDL post/thread on the topic of the various modes of corporate/political distractions currently being fronted by Obama:
http://fdlaction.firedoglake.com/2012/04/17/there-is-no-super-secret-obama-waiting-for-2013/
@skiprob
A privatized judiciary doesn’t make sense. How do you have competition for legal justice?
If a competition is fair, the outcome is uncertain. Markets, if they work, are unpredictable. That’s why Wall Street investing is often called gambling. Markets are a poor mechanism for the guarantee of rights.
The Framers’ concept of freedom wasn’t the freedom to do whatever you want under any circumstances. That freedom is what Thomas Hobbes called the state of nature: it is miserable and uncertain, nasty, brutish, solitary, and short-lived. What the Framers offered with “the blessings of Liberty” is protection from the arbitrary exercise of authority. Given that one has a say in what laws are passed, liberty is having to obey only the laws, and not the arbitrary decisions of others.
The concept of freedom in the western liberal tradition doesn’t even extend to absolute freedom over property. Property doesn’t have rights. The Lockean tradition, which was largely concerned with property (and which inspired the phrase, “life, liberty, and the pursuit of happiness”), held property as subject to regulation by the state. In his ‘Second Treatise on Civil Government,’ Locke wrote:
(sect 120) “it would be a direct contradiction, for any one to enter into society with others for the securing and regulating of property; and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government, to which he himself, the proprietor of the land, is a subject.”
Locke says elsewhere in his ‘Second Treatise,’ perhaps more clearly:
“Where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but freedom is not, as we are told, a liberty for every man to do what he lists” (sect. 57). Liberty is having assurances everybody obeys the same law.
That’s not the description of a market.
You say the darnest things. What do you think mediation companies are? Or how about the roads my townhouse association built in our neighborhood yet we do not charge our fiends to come and visit us. Did you know that many of the turnpikes of New England were originally built by private enterprise or that the Panama Canal was funded by private enterprise. Or that many of cour countries first railroad bridges were build by the railroads, yes once again private entreprise. That many people would rather home school their children rather than subject them to public education. I also challenge you on your distortion of a true Hayek quote. He would never say such gibberish. For all the money and attempts to improve society by government, why is it that it has created such a mess even after spending in access of $2.4 trillion a year with budget deficits over $1.2 trillion over the last 4 years. People like you are the reason our society is going to shit. Stop your lies and and your erronious contentions as they are and have been easily disproven.
“Government hasnt raised one person out of poverty except government workers.”
Did me — I went to public schools.
DonS,
Speaking of the irrelevance of the “Republican/Dem paradigm” and the even more insidious “bi-partisan” cover for corporate collusion:
“The [Republican culture warriors] worked hard to build their movement, [but] they would not have succeeded so extravagantly had it not been for the simultaneous suicide of the rival movement, the one that traditionally spoke for working-class people … [namely] the Clinton administration’s famous policy of “triangulation,” its grand effort to minimize the differences between Democrats and Republicans on economic issues. Among the nation’s pundit corps “triangulation” has always been considered a stroke of genius, signaling the end of liberalism’s old-fashioned “class warfare” and also of the Democrats’ faith in “big government.” Clinton’s New Democrats, it was thought, had brought the dawn of an era in which all parties agreed on the sanctity of the free market. As political strategy, though, it was the purest folly. It simply pulled the rug out from under any possible organizing effort on the left.” — Thomas Frank, What’s the Matter with Kansas?
President Obama, for his part, has simply renamed Clinton’s suicidal “triangulation” as suicidal “bipartisanship,” which means that President Obama fully intends to continue pulling the rug out from underneath any possible organizing effort on the left — meaning any anti-imperial, worker-based economic movement of the kind that built the American middle class in the first place. Under Democratic presidents Clinton (the last one), Obama (the current one), and Clinton (the next one), the preemptive economic suicide of the Democratic Party began, continues, and will go on.
Having done the “first African American President” circus distraction, we will next witness “the First Woman President” circus distraction. Assuredly, something superficial this way comes. All the while, in the real world, the ugly gladiator games go on in the temp-services labor market, with the Democratic Party volunteering to speak for the mute (whom they do not represent) to the Republicans who (like them) represent the Caesars: morituri te salutant
MM, thanks for the riff. Us graybeards might have reason to weep, though hopefully the experience and wisdom to ‘contextualize’.
DonS,
The self-styled “tea party” — we called them John Birchers four decades ago — have long since overrun Idaho, Nebraska, and Kansas. And their their unabashed worship of “cowboy capitalism” has brought them precisely what? From someone who grew up in Kansas and knows its social and economic history quite well:
“Let us pause for a moment to ponder this all-American dysfunction. A state is spectacularly ill-served by the Reagan-Bush stampede of deregulation, privatization, and laissez-faire. It sees its countryside depopulated, its towns disintegrate, its cities stagnate — and its wealthy enclaves sparkle behind their remote-controlled security gates. The state erupts in revolt, making headlines around the world with its bold defiance of convention. But what do its rebels demand? More of the very same measures that have brought ruination on them and their neighbors in the first place.”
…
““Push them off their land, and the next thing you know they’re protesting in front of an abortion clinic.”
…
“… Republican, voting like the people they wanted to be rather than the people they were.” — Thomas Frank, What’s the Matter with Kansas?
In the absence of rigorous government enforcement of anti-trust regulation, capitalism (cowboy and globalist alike) tends inexorably toward monopoly, with a brief stop at oligopoly along the way. And as I understand American history, the cowboy represented low-wage, temporary labor while the rancher represented capitalism. I do not think that this particular judge knows much about either cowboys or ranchers, let alone capitalism. Her reactionary obiter dicta sound more like arbeit macht frei to me.
Dude you nailed it in such brief eloquence. To bad you wrong in almost every issue within your analysis. You have no friggin idea as to what your talking about. It is not so simple dude and it is even less easy to articulate in brief. You need to start reading a few books before writing such garbage. The Voluntary City by the Independence Insitutute would be a good starter for you. Government is good at one thing – they killed over 170,000,000 people in the 20th century and they appear to be positioned to continue this extroordiary feat.
“Total crapola, from 1900 to 1965 almost 95% of people were raised out of poverty by a relatively free market. Government hasnt raised one person out of poverty except government workers.” What ignorant nonsense! I suggest you go to the library and select an American History book! I am from a former industrial area of Western Pennsylvania where the average worker was clearly raised out of poverty by the New Deal and fair labor regulations. Americans have been mesmerized by the mythology of the “free market” and “globalization” by the elite rightwing conservatives of Reaganomics as if they were a divine force of nature, a race to the bottom, a downward spiral of the American middle class on Main Street while enriching Wall Street and K Street!
Bron:
“Government hasnt raised one person out of poverty except government workers.”
—————————————————————————-
A few houses down the street lives a man who back in 1967, at the age of 18, entered one of the domestic programs set up by Pres. Johnson through his Great Society initiative. There were several apprenticeships offered and he choose Culinary. He lived in a very low income area of Cleveland and had never graduated from high school. Half way through his apprenticeship he decided to also take advantage of the classes offered within the program and get his GED.
For the last 30 years he has owned and operated one of the finest “fine dinning” establishments in NE Ohio.
Hundreds of people in the Cleveland area took advantage of that government program in the ’60’s and moved out of poverty into a well established existence within the upper middle class. Butchers, bakers, plumbers, electricians, tool and die makers, machinists … it was a public/private partnership initiated by government, run by government in partnership with local businesses.
Gene,
That Hayek passage is one I have seen before and, like you, would like to be able to remember it and reference it. Rather illuminating what “free market” can mean from era to era.
Bron:
“Government hasnt raised one person out of poverty except government workers.”
*****************************
Don’t tell that to Rosemary Bray.
http://www.nytimes.com/1998/03/08/books/a-welfare-success-story.html?pagewanted=all&src=pm
“Until you have a privitized judiciary, you will not have true justice for the majority. ”
Really. What you’ll have is enforcement for only those who can pay for it, which isn’t justice. That lady is blind. She works for all or she works for none. Also, for all the Libertarian bullshit about protecting the Constitution, you should realize the public judiciary is indeed created by the Constitution. You should just say “We’re all for the Constitution as long as we get to cherry pick it in order to do whatever the Hell we like without fear of repercussion” because that’s what you apparently mean based upon your gyrations and the consequences of the actions you advocate.
Inigo Jones,
Exactly.
Although I’ll have to say, that’s a Hayek passage I’ve never seen. I’m going to keep that one. If for nothing else the sheer entertainment value of watching Libertarians explode upon reading.
*****************
Bron,
“Total crapola, from 1900 to 1965 almost 95% of people were raised out of poverty by a relatively free market. Government hasnt raised one person out of poverty except government workers.”
Yes, what you say is total crapola. Thanks for pointing that out.
The original SSA (including SSI and SSDI) was passed in 1935, the Fair Labor Standards Act in 1938 and Medicare/Medicaid in 1965. All of which the absence of would force many – including the sick and the elderly – to live under bridges. All of which were and are opposed by industry.
Yeah, you may have read von Mises, but apparently you missed out on the lessons of Dickens or the historical lessons of highly economically imbalanced societies. For a group who worship Rand and selfishness as a virtue so much, you certainly do fail to realize that the Austrian School of “Economics” certainly does depend on the good will and altruism of the business class to avoid social disorder and inequities.
Like that’s going to happen.
DonS:
“Let’s see now. Tea Partiers should get a big hunk of, oh I don’t know, maybe northern Idaho. Strict Libertarians? Hmmm, maybe some nonproductive stretches of Kansas and Nebraska. Let them go at it. Exercise those self- reliant genes.”
We would turn those 3 states into one of the largest economies in the world in less than 10 years. We dont need you but you need us as milch cows for all your pie in the sky feel good programs. If it wasnt for the hardworking [taxed to death] middle class and people like Peter Schiff, Mit Romney, Steve Jobs and other super producers you would not have shit to give away. So I wouldnt get too sanctimonious.
Oh and if you think I am full of shit go take a look at Singapore.
“Like raise people out of abject poverty”
Total crapola, from 1900 to 1965 almost 95% of people were raised out of poverty by a relatively free market. Government hasnt raised one person out of poverty except government workers.
How many people have gotten out of poverty for the trillions of dollars that have been spent on eradicating poverty? Poverty is still with us and getting worse. Stimulus is working so well. And Obama doesnt have a clue, that Rose Garden speech today or yesterday about the price of gas was classic. He could have generated a couple of mw’s of electricity with that hot air.
This depression is showing first hand how socialism impoverishes people while government employees are out yucking it up with our hard earned money. When Marie said “let them eat cake” we thought she was talking about the people, apparently it was the government employees at the people’s expense.
And we are worried about $4/gallon gas? We should be worried about bloated government stealing our earning potential and our savings. Excessive spending is only part of the problem, the other part is the fiat money being printed by the treasury and Federal Reserve. Inflation is a thief and part of the reason for $4/gallon gas.
But government employees making over $100,000 think they are entitled to a big fat raise and big fat pensions and benfits at our expense. Now I now the 1% we should be talking about and it isnt people who pay their own way. People need to demand fiscal accountability from their congressmen and heads need to role in the wake of the GSA travesty. People are hurting financially and government employees are out partying with our money.
Let’s see now. Tea Partiers should get a big hunk of, oh I don’t know, maybe northern Idaho. Strict Libertarians? Hmmm, maybe some nonproductive stretches of Kansas and Nebraska. Let them go at it. Exercise those self- reliant genes.
Hey indigo, business doesn’t coerce you to do anything unless the government gives that business the power to coerce you by proxy.
You know, a libertarian is not an anarchist. They do believe government needs to provide police, courts, judges, and other officers to administer justice. Some are opposed to government operation of roadways, others are not.
Until you have a privitized judiciary, you will not have true justice for the majority. Check out the stats on the inequities of justice. It’s unconsionalble.
The free market didn’t fail at providing those things, Gene. The government came in and claimed a monopoly by force in those areas. That’s what government does. When the government forces you to pay for public schools through taxes, most people don’t want to pay any more to send their kids to private schools. Government is failing miserable at providing the services you mention and is using them for the wrong ends. The government will ultimately not be able to provide any of these services because it is broke and the people it is taxing are becoming more and more broke.
Gene says the government raises people out of abject poverty. That was a good one. Sort of like Jesus raising Lazarus from the dead, the deified state raises up the poor out of the cesspool. Go hang out in the government housing projects for a few hours, Gene, and see how you like it. I would personally sooner live in a tent out in the woods.
@Gene H
What Skiprob won’t acknowledge is that government has a function where markets won’t work. Markets require the price system and competition. How could markets deliver basic infrastructure like local roads? How do you have “competition” if there’s only one right-of-way? How do you determine what people are willing to pay to drive down a street? Stop them at the edge of every neighborhood and demand payment? If roads were handled by market mechanisms, they would be so slow and convoluted nobody would want to use them.
Most of these people won’t acknowledge either that the basis for the libertarian position is freedom from coercion — whether that coercion comes from government OR business. While these libertarians complain about government distorting markets, they never talk about oligopoly distorting markets. Most of these people don’t have a clue what a market actually is, they just have a superstitious attachment to a romanticized vision of Victorian entrepreneurial — a state of affairs that no longer exists, and cannot be brought back (unless we’re willing to do without all that industry provides us).
Anti-monopoly free-market theorist Friedrich Hayek wrote in the Road to Serfdom:
“The functioning of a competition not only requires adequate organization of certain institutions like money, markets, and channels of information — some of which can never be adequately provided by private enterprise” (38) he asserts that “there can be no doubt that some minimum of food, shelter, and clothing, sufficient to preserve health and the capacity to work, can be assured to everybody” (120).
Libertarians opposed to “socialized medicine” might be surprised to find Hayek argue that:
“Nor is there any reason why the state should not assist the individuals in providing for the common hazards of life against which, because of their uncertainty, few individuals can make adequate provision. Where, as in the case of sickness and accident, neither the desire to avoid such calamities nor the efforts to overcome their consequences are as a rule weakened by the provision of assistance — where, in short, we deal with genuinely insurable risks — the case for the state’s helping to organize a comprehensive system of social insurance is very strong” (121).