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
Gene H:
the problem with what you say is that Hamilton was philosophically in favor of a strong central government while Jefferson and Madison were supporters of liberty and for a limited/weak central government with just enough power to do what needed to be done and no more.
You cannot separate the man from his philosophy. For example, I pretty much know how you will look at a specific issue based on your philosophical bent. And I am pretty sure you know the same about me.
I was going to vote for Obama until he had the exchange with Joe the Plumber. He was very candid about sharing the wealth and you could tell it was something he truly believed in. I know Obama’s philosophy from that single exchange. I am always surprised when people tell me they voted for him but feel betrayed, I am talking about my conservative friends, because they thought he would be more pro-business. He is clearly a statist and the Joe the Plumber moment should have defined him but people wanted to see a charming man with a million dollar smile and a great looking family so they ignored the evidence.
Bertie Wooster called it the psychology of the individual or maybe that was Bertie quoting Jeeves.
“Which are you a Jeffersonian or a Hamiltonian? Cant have that both ways no matter how pragmatic and utilitarian you might be, you got to choose, 1 or 0.”
The Hell I do, Bron. There is nothing compelling me to adopt your bad habits and impaired critical thought.
I like some things Jesus said.
I like some things Confucius said.
I don’t have to choose between the two.
Both can be right.
Once again, you’ve gone straight for the false dichotomy. I like (and dislike) things about both Jefferson and Hamilton and for different reasons. The same goes for Madison. Unlike you, I’m not an absolutist. In the overall schema of things, I prefer Jefferson over Hamilton on the most points. In this instance, I think Hamilton was right. Remember, the Preamble is the functions of government defined as outcomes naturally flowing from the rest of the document. Not causation. However, the promotion of the general welfare is one of the first of Congress’ enumerated power and the bottom line is that Hamilton’s expansive view of promoting the general welfare is what is reflected in the jurisprudence since the beginning of the country and the accumulation of case law. It is merely happy coincidence that my preference in this matter matches the case law and Hamilton. The Constitution does not exist in a vacuum.
You make all the binary absolutist choices you like. That’s a bad habit that limits choices and solutions but it is your prerogative. I reserve the right to evaluate individual issues on a case by case basis without artificial limiting options. This includes which thoughts of different men, both of whom I respect, I deem to hold the greatest wisdom on a given topic. If that offends your binary thinking?
Too bad.
Mespo:
Sounds like a 60’s hippy to me. Question authority, OK but do you have to do it without government?
What is wrong with limited government which respects and protects individuals and individual rights?
Mespo, The problem is that no society has ever been able to restain the constant encroachment of the usurpation of individual rights and therefore limit government powers. The judicary has always been the thorn in the Citizens side rubberstamping the rulings of politicians which operate govenment as a power brokerage cartel. One group voting themselves the right to rule over others via police power has never worked over the long term, as all governments eventually self destrust. It appears that only libertarians understand this historic fact and why. There are enough historic facts to easily conclude this determination. Most people just choose to either to ignor them or aren’t willing to take the time to research them.
Gene H:
I wouldnt get too puffed up citing a New Deal court case. “A switch in time saves nine”.
Hamilton, you kidding? A guy who wanted a central bank. Which are you a Jeffersonian or a Hamiltonian? Cant have that both ways no matter how pragmatic and utilitarian you might be, you got to choose, 1 or 0. Me, I’ll take Madison [along with Jefferson]:
“Veto of federal public works bill
March 3, 1817
To the House of Representatives of the United States:
Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
James Madison,
President of the United States”
Bron:
“Anarchy is as much for children as is the nanny state.”
****************
Actually it is a respected philosophical position. I don’t agree with a society based on a government with no force to conform people to law, but there is some moral authority for the proposition.
Modern Anarchism … is primarily a tendency — moral, social, and intellectual. As a tendency it questions the supremacy of the State, the infallibility of statute laws, and the divine right of all authority, spiritual or temporal. It is, in truth, a product of Authority, the progeny of the State, a direct consequences of the inadequacy of law and government to fulfill their assumed functions. In short, the Anarchist tendency is a necessity of progress, a protest against usurpation, privilege, and injustice.
William Bailie, in The Anarchist Spirit (1906)
Well done Mespo and Gene. Mr. Metz continues to spew without the facts getting in his way.
“In my opinion corporate coercion is only possible with the assistance of government.”
Really. Libertarians don’t realize this is a fantasy predicated on markets being a just mechanism that promotes or ensues just outcomes when they are nothing of the sort. It’s your opinion so you are entitled to be as wrong factually as you like, Bron.
“Welfare means something different today than it did in 1787.”
No, it doesn’t. Read your Hamilton. Why? Because his interpretation of promoting the general welfare is the one that has dominated case law since he first started arguing it, culminating in Helvering v. Davis.
You don’t let facts get in the way of your analysis, so why should you let facts get in the way of your conclusions?
It’s a big flaw in Libertarian thinking.
“Hit & Run” Jeff Metz:
“Indeed, the Obama Administration openingly attacks tradtional American capitalism.”
****************
Prove it or quit saying it. You’ve become spam.
skiprob:
Anarchy is as much for children as is the nanny state.
“I want to do what I want to do, when I want to do it or please mommy take care of me, I am scared and hungry.”
Either way it isnt becoming to a self respecting adult.
Indigo Jones:
In my opinion corporate coercion is only possible with the assistance of government.
Words do have meaning and you have to look at what the words meant and how they were used in the 18th century to understand what the Constitution is saying. Welfare means something different today than it did in 1787.
The Constitution is a limit on government power so you have to look at it from that standpoint.
Progressives dont understand that your money is your money and not the governments money and they want to make up, out of whole cloth, the meaning of the Constitution to suit their needs on any given day. So that they can do whatever they want, how they want and when they want to any individual or group with which they disagree.
I think this is a big flaw in progressive’s thinking.
What is just as alarming in this situation is the fact that her attitude towards capitalisim is growing in America. Indeed, the Obama Administration openingly attacks tradtional American capitalism. They further promote the policies of Western European Socialism. Such “theory” is simply hard to grasp.
Jeff Metz
http://www.mostly-right.com
It is interesting that as the level of socialism increases in a society eventually this causes the collapse of that society. Government as a viable institution has surely provided enough historical proof that it is a failed concept yet we hold on to the illusion. The question is it by force or by voluntary association. We all know the answer is that it is involuntary servitude except for those that work for the government, hense the two side rivalry that has plagued our world. Interestingly there are those that beleive they have the right, experience and knowledge to regulate my activities and pursuites of happiness and of course they want to steal and extort our money from us for the previledge of doing so.
@Bron
All the issues you raise are good ones, but, unfortunately, as skiprob illustrated with statements like “I also challenge you on your distortion of a true Hayek quote. He would never say such gibberish” there is little possibility of informed discussion where ideology blinds people to facts.
Modern libertarianism tends to obsess about government coercion without addressing corporate coercion. This is a big flaw. Conservatives, likewise, don’t understand that unless you talk about the Constitution in terms of what the words meant to the people who wrote them, you’re not talking about the constitution at all.
And most libertarians don’t recognize that much of what “made America great” was not just the result of enterprise, but subsidy.
Land grants made the railroad possible. Those were subsidies.
During George Washington’s administration, 80% of the federal budget went to Indian eradication. “National defense” is the oldest subsidy in US history.
Federal Judge Writes Radical Manifesto Into Opinion; Will The Media Notice?
April 17, 2012 7:58 am ET by David Lyle Media Matters
A court of appeals judge appointed by President George W. Bush issued a sweeping radical libertarian manifesto in a recent opinion. In doing so, D.C. Circuit Judge Janice Rogers Brown signaled a desire to strike down numerous health, safety and consumer protection laws. Brown’s opinion is further evidence that the media should give greater coverage to the courts of appeal, which often have the last word on legal issues that shape the life of every American.
Brown’s concurring opinion, which was joined by Judge David Sentelle, is a frank and enthusiastic embrace of libertarian economic theories, and a scornful rejection of the democratic process:
[The case] reveals an ugly truth: 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.
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” … Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review…. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” (emphasis added).
Legal history fans will recognize the purported nightmare scenario Brown laments as the series of decisions in the 1930s in which the Supreme Court recognized that the Constitution gives Congress and the state legislatures, and not judges, the power to determine how best to regulate the economy and protect the health and safety of the public. These decisions brought to an end the so-called Lochner era in which right-wing judges applied libertarian economic theories similar to Brown’s to strike down child labor laws, minimum wage and maximum hour rules, and a host of other health, safety and consumer protection laws. Brown advocates for a return to that era, in which no protection of consumers, workers, investors or children was safe from judicial second guessing.
As David Gans of the Constitutional Accountability Center writes in an email to Media Matters:
Judge Brown’s concurring opinion calls economic liberty a fundamental constitutional right and urges the Supreme Court to take us back to the Lochner era, when the Supreme Court invented a constitutional right to freedom of contract to second-guess state and federal regulation of corporations and other businesses. This is a revolutionary view that would call for overturning hundreds of federal and state regulations as well as the last eight decades of Supreme Court jurisprudence.
Brown also is dismissive of the democratic process, writing that “hope of correction at the ballot box is purely illusory.” Her support for this sweeping claim? A law review article by a professor at the libertarian-oriented George Mason University School of Law.
Indigo Jones:
Do you think Locke would agree to the state taking part of your land for wetlands? Or restricting your ability to build because the short toed spotted moth eater built a nest on the back corner of your lot?
Locke also says there are only 3 things government should properly do, protect life, liberty and property. If government has a free reign on your property then what is the point of rising from the state of nature? You have a better chance of securing your liberty in a state of nature where all have the same resources available.
Are you in favor of zoning laws and restricting growth through the creation of large lots or park set asides? Why should government have that kind of power over your property? Park set asides could be justified as a benefit to the community but public golf courses? Why should I subsidize a persons golf game?
Pollution regulations are OK in my opinion because they impact other people and taking a property for a road is legal but has been abused by corrupt politicians for their own personal gain. Eminent Domain has become a way for politicians and government employees to line their own pockets at our expense. Yet another example of a government so far beyond the bounds of civil society it has ceased being moral. Endless war, endless spending, assassination of citizens without due process, how much more abuse do the people need to tolerate?
This is the result of statism.
Founder and President, Constitutional Accountability Center
What a Conservative Judicial Revolution Looks Like
Posted: 04/17/2012 Steve Kendall Huffington Post
As the Supreme Court’s conservative majority stands poised at the edge of a cliff — debating whether or not to strike down the Affordable Care Act and pick a very large fight with Congress and a sitting President — two conservative judges on the U.S. Court of Appeals for the D.C. Circuit sought to push them over the edge last week. Their opinion — a startling call for the abandonment of eight decades of Supreme Court case law in economic cases and a return to the pre-New Deal “Lochner Era” — is the clearest roadmap yet as to what a conservative judicial revolution looks like.
If you listened carefully to oral argument in the Supreme Court health care case, as well as the commentary that surrounded the argument, you know that the “ghost of Lochner” was ubiquitous, scaring school children and anyone who cares about the reputation and future of the Supreme Court. The Era is named after its most notorious ruling, Lochner v. New York, a 1905 case in which the Supreme Court struck down a state statute that attempted to impose a maximum-hours limitation on bakers. The Court declared this state law was an unconstitutional infringement of the “economic liberties” it found protected by the 14th Amendment. During the Lochner Era, the Supreme Court invalidated scores of federal and state statutes designed to improve working conditions and jump-start the economy out of the Great Depression, inventing new constitutional rights and giving a cramped construction to Congress’ express constitutional powers. The fear now is that a 5-4 ruling by the Court striking down all or part of the ACA will usher in a new wave of conservative judicial activism, pushing forward additional challenges to landmark federal statutes passed since the New Deal.
If that is the fear among many, it is the heartfelt desire among some — including some of the most prominent lower court judges placed on the federal bench by the last several Republican presidents. That was the message of a remarkable concurring opinion issued last Friday by D.C. Circuit Judge Janice Rogers Brown, an appointee of President George W. Bush, and Judge David Sentelle, a Reagan appointee. The opinion accuses the Supreme Court of “abdicat[ing] its constitutional responsibility to protect economic liberty completely” and suggests that economic liberties should be recognized as a fundamental constitutional right. It advocates that courts step in whenever they discover “the political temptation to exploit the public appetite for other people’s money–either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.”
That sentence reads like gibberish, perhaps to disguise just how radical it is, but let me try to translate it into English. Federal programs such as Social Security and Medicare are classic examples of “broad-based entitlements.” Much of the regulation by agencies such as the Environmental Protection Agency (EPA), the Federal Energy Regulatory Commission (FERC), the Nuclear Regulatory Commission (NRC) and the Federal Communication Commission (FCC) are carried out through “licensing” requirements. Tariffs have been a part of trade regulation since the nation’s Founding. And so on. Brown would have judges to invalidate much of the Twentieth Century and she would celebrate the return of “America’s cowboy capitalism,” that this would produce. Citing Hungarian anarchist Anthony De Jasay, Brown endorses the notion that “Civil society, ‘once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.'” She accuses judges who refuse to trump the decisions of the political branches of leaving property “to the mercy of the pillagers.” Wow.
This is Lochner on steroids, and the timing of the opinion suggests it has an intended audience of five — the five conservatives on the Supreme Court. The message to the Justices, like the message of the intemperate bullying of Department of Justice lawyers by Judge Jerry Smith (also a Reagan appointee) in the Fifth Circuit two weeks ago, also seems clear: ” step into the abyss, we’re behind you all the way.”
Last Friday’s opinion from Judge Brown should surprise no one. She was put on the D.C. Circuit to play the role of judicial provocateur. As I wrote in the Washington Post eight years ago when her nomination to the D.C. Circuit was pending in the Senate, Brown, then a Justice on the California Supreme Court, was the only judge in America at that point who openly yearned for a return to Lochner. In a series of speeches she delivered shortly before her nomination, Brown explicitly endorsed a return to Lochner in apocalyptic language that was echoed by her opinion last week.
What was remarkable then about Judge Brown’s speeches was how out of line they were even with the views of staunch conservatives such as Robert Bork and Edwin Meese. At that time, Bork and Meese were still actively condemning the Lochner era, and suggesting the activism of conservative judges of that era was just as bad as what they believed was the activism of the Warren Court.
What’s really scary is that today, voices like those of Fourth Circuit Judge J. Harvie Wilkinson, Sixth Circuit Judge Jeffrey Sutton, and Brown’s D.C. Circuit colleague Judge Laurence Silberman — voices for conservative judicial restraint — are starting to seem like the outliers. If you want to know what a conservative judicial revolution looks like, Judge Janice Rogers Brown has just published a roadmap in the federal case books.
Compassionate Conservatives……. Another way of saying…… We care very much how much money I have……
http://www.informationclearinghouse.info/article31091.htm
This isn’t left/right…..it’s just poor jurisprudence
Thanks for the FDL link, Don. I agree that no new, hitherto unrevealed, secretly liberal President Obama awaits us should he receive a second term. As the concluding paragraph of the article states:
“If Obama significantly changes course on this or any other issue after re-election, it won’t be because it was all part of Obama’s super secret plan for his second term. It would be a result of changing facts, popular opinion, and political pressure making his old course untenable.”
Unfortunately, Democratic presidents, like the Republican presidents they so admire and seek to emulate, only respond to pressure from one direction. As Barbara Tuchman put it in The March of Folly:
“The American government reacted not to the Chinese upheaval or to Vietnamese nationalism per se, but to intimidation by the rabid right at home and to the public dread of Communism that this played on and reflected. [In] the social and psychological sources of that dread … lie the roots of American policy in Vietnam.”
President Obama has put a black face on the Democratic Party’s knuckling under to the rabid right at home, and You-Know-Her will put a feminine face upon the same craven capitulation. The rabid right assiduously plays on social and psychological sources of atavistic unease among what Gore Vidal calls “the most easily frightened people on earth.” Substitute “Terrorism” for “Communism,” and the American government responds with Reactionary Panic, Mystic Dread, Abstract Angst, and good-old Fear Itself. The Republicans have delegated to the Democrats only one menial job: namely, to protect the rabid right from any serious challenge from the left. So “pressure” from the left receives only disdainful neglect from Democrats like Obama and You-Know-Her. They have their quivering political antennae turned almost exclusively in the other direction, cringing in anticipation of the next lashing from the corporate whip.
So it comes as no surprise that President Obama has lurched ever rightward in response to the only pressure that concerns him. That intimidation will not let up in a second Obama term, mainly because the rabid right has had so much proven success with it over the past four decades. The same will apply to President You-Know-Her. No pressure for real change will emerge from the left until it has mobilized and survived the vicious beatings in the streets that it will surely receive from Republican and Democratic presidents alike, no matter the superficial, though “historic,” color of their faces or their gender.
“I also challenge you on your distortion of a true Hayek quote. He would never say such gibberish.”
I laughed until I stopped.
If you think it was a distortion? You really won’t like the full quote. I invite people to read in its whole context here.
I concede. He undoubtedly did not have knowledge of how well FEMA, the Administration and the State of LA did during the hurricane floods of New Orleans. Hayek is difficult to read and it appears he is questioning the ability ot the State to set up social security without effecting individual rights. I think not and dissagree with Hayek, if that is his conclusion. That doesn’t make me right though. I have yet do give you adequate rationale for my opinion. The question is how would one do that? We are talking in mass generalities and philosphies which as individuals we can only try to make rational determininations based on evidenturay experience and logic of how the community is effected as a whole. So my question to you would be – How to do this? What information would you need to come to such a conclusion of either position?