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
a discrete idea exists within a broader body of knowledge. A screw is just a piece of steel with some raised ridges on it without the context of 2 things needing to be joined.
A screw could be used as a weapon or a door stop if it was big enough but that is not what a screw is used for, a screw is used to join things.
Which is why you have to make sure your belief system is integrated from top to bottom. Free market socialism has no meaning even though it is a discrete idea.
Bron,
It seems they have read what you’ve said, the critical sentence being this:
“No, you really cant separate the components of a philosophy.”
We all recognize backtracking when we see it. And with you now saying:
“If your overall belief system is correct but there is one area which you have found to be at odds with the main body of knowledge, why wouldnt you just throw out the portion which was wrong and integrate the new knowledge into your belief system?”
your philosophy seems at odds with itself. And according to your philosophy you may have few options for making corrections.
Gyges:
Why dont you read what I said.
If your overall belief system is correct but there is one area which you have found to be at odds with the main body of knowledge, why wouldnt you just throw out the portion which was wrong and integrate the new knowledge into your belief system?
You and Gene H dont make much sense.
@bron,
“A proper philosophy would allow for constant evaluation and modification if new information came to light which was contrary to originally held beliefs”
Might this not imply that institutions such as unions are reasonable, liberty-preserving responses to the coercive and abusive pressures of industry?
If you looks at the South African Bill of Rights, you might see a number of things that we Americans could learn from. They just overthrew an oppressive regime and don’t view gay rights, environmental protection, or unionizing as instruments of tyranny.
http://www.info.gov.za/documents/constitution/1996/96cons2.htm
It is worth noting too that, without the state to organize production, there is no industry. This is why in the mid-1800’s the Anarchists called Communism “State Capitalism.” With that in mind, a self-consistent Libertarian position would be very suspicious of economic growth.
I think that’s supposed to be a Mandelbrot set, Gyges.
Neat little site though.
Gene,
Yeah, I didn’t refresh before hitting the post comment button.
Appropriately enough I was looking at this instead
http://www.yourlogicalfallacyis.com/
My favorite is the Fallacy Fallacy, I’m still trying to figure out what that icon’s supposed to be.
That is a fabulous site however – thanks for the heads up. http://www.yourlogicalfallacyis.com/ So many people do not see these manipulations by writers and speakers. I probably commit a few sins now and gain myself
Part of my point precisely, Gyges.
Bron,
How on earth do you reconcile ““No, you really cant separate the components of a philosophy”,
with
“A proper philosophy would allow for constant evaluation and modification if new information came to light which was contrary to originally held beliefs”?
Either you can separate out the components to modify them, or you can’t and have to replace the philosophy whole.
“A proper philosophy would allow for constant evaluation and modification if new information came to light which was contrary to originally held beliefs.”
Not according to your absolutist “all or nothing” approach. Any modification would by default throw the whole cake out. You are a fine one to talk about cake and eating considering your philosophy does not allow for modification and must be followed dogmatically.
“What I disagree with is taking a piece of this and a piece of that without any thought as to whether or not the pcs. are compatible with each other and whether the context of the belief retains meaning when separated from the main body of knowledge and is the main body of knowledge good or bad. ”
Nonsense. A discrete idea is a discrete idea. A screw is a useful idea whether it holds together a bicycle or a nuclear bomb. You test whether components of philosophical thought are compatible by testing them against each other.
“Most conservatives I know believe just that. We want limited government, we want reasonable limits on human behaviour, we do not want our noses wiped nor our boo boos kissed by the great white father in Washington.”
This is polemic and based on ideological preference. You want small because . . . you want small. I prefer functionality in resolving defined problems as the aesthetic. Right tool for the job and maximizing outcomes. Small rule utilitarianism and pragmatism inform that aesthetic.
Indigo Jones:
“Just to be clear, this is a revolutionary position, not a conservative one,”
Most conservatives I know believe just that. We want limited government, we want reasonable limits on human behaviour, we do not want our noses wiped nor our boo boos kissed by the great white father in Washington.
Gyges:
A proper philosophy would allow for constant evaluation and modification if new information came to light which was contrary to originally held beliefs.
In fact any philosophy worth its salt must allow for that or otherwise you remain in the literal and figurative dark ages.
So I would say I agree with you on the necessity of examining your belief system from time to time.
What I disagree with is taking a piece of this and a piece of that without any thought as to whether or not the pcs. are compatible with each other and whether the context of the belief retains meaning when separated from the main body of knowledge and is the main body of knowledge good or bad. I think you need to look at the entire body of work to see if the outcomes are beneficial or harmful.
Taking a pc of Marx and a pc, of Locke and combining the 2 is not impossible but the 2 philosophies, as far as I can tell, are not compatible. What you would be left with is a philosophical PushMePullU.
“I seek to impose no limits and let nature take whatever course it takes concerning human relations”
Just to be clear, this is a revolutionary position, not a conservative one, as the quotes from Hayek and Locke that I cited earlier illustrate. This is a Jeffersonian ideal in a world dominated by Hamiltonians and Madisonians. Jefferson was a revolutionary.
But, our “limited” constitutional government does more than the bare minimum necessary to protect “life, liberty, and property.” As I pointed out earlier, the government has a long history of providing the subsidies necessary to allow private enterprise to flourish.
More subtle, perhaps, are provisions such as the prohibition on titles of nobility in Article I, Section 9. Such clauses mean to shape the whole social order and prevent a decentralized feudal system from re-emerging, even as the revolutionists were combating the highly centralized power of the monarchy.
Beyond the fact that the constitution makes no provision for the separation of state and market — and that any advocacy of such a position represents an EXPANSION of the prerogatives of a limited constitutional government — there is bound to be disagreement as to what constitutes the bare minimum necessary for “life liberty and property” (actually, property was locke’s hangup, the framers said “pursuit of happiness” which you are free to interpret as “property”).
Now I have a lot of sympathy for the anti-statist view, and cringe whenever I hear the word “anarchy” used as a synonym for “chaos,” but the anti-statist view is revolutionary, not conservative.
Gene H:
“The limits you seek to impose here (and elsewhere) are artificial and of your making.”
I have to laugh at this. I seek to impose no limits and let nature take whatever course it takes concerning human relations with only the minimal restraint from government necessary to protect life, liberty and property.
Progressives are the ones who seek to impose artificial limits on everything.
Bron,
No, but it’s pretty necessary for a Fundamentalist belief in a religion that EVERYTHING about that religion must be true, and that there is no way to separate the components. See, if you can separate out the outdated components, then there’s no need to follow all of the original tenants, because once you admit that part could be wrong, then you admit that any particular part is up for review.
As a result of this type of thinking, claiming that philosophies must be taken as a whole or not at all is a tactic that Fundamentalists use to dismiss things that run counter to their beliefs. For instance, Creationists often claim that Evolution must be wrong because one or another theory has been proven wrong by further evidence.
Gyges:
I dont consider philosophy a drug. Nor does having a belief system make someone a fundamentalist.
Bron,
Have you not heard of syncretic thought processes? Are you ignorant to the fact that all philosophies are syncretic inventions — taking thoughts from multiple sources and blending them into a new paradigm?
Separating components of a philosophy happens all the time, syncretic thought occurs in all human endeavors; to say that one can’t do this ignores one of the most powerful components of human thought.
Bron,
“No, you really cant separate the components of a philosophy.”
I can.
I know many others who can.
Just because you cannot doesn’t mean it is impossible.
I’m not sure where you got the ridiculous idea that philosophies were integrated systems, but it is patently false. Some of it I’m sure comes from the Western tradition which tends to be very rigid and dogmatic in that sense, but part of it rests in your own propensity to think in absolutes and a binary manner. You’re encouraged to be Team Jesus or Team Moses or Team Mohamed but you can’t be all? Well that’s a function of organized religion fighting for social dominance and control. It has no bearing on actual philosophy. There are beautiful truths underlying all the branches of the Abrahamic religions. The “Go Team” mentality is a function of men using religion (and to a lesser but related extent, philosophy) as a tool to divide and conquer. Do you know why so many belief systems co-exist relatively peacefully in the East? Because the philosophical tradition of the East isn’t as rigid and dogmatic. People pick and choose what works for them from the various systems. For example, I’ve known people who wouldn’t object if you called them Buddhist Christian Taoists, but they would be a little puzzled as to why you insisted on putting their operational principles into a neat little box with labels on it. They’d be even more puzzled by your insistence that they must choose only one and stick to it with strict rigidity.
No.
Just because you are constrained to binary thinking and try to force the world into easy for you to understand categories doesn’t mean that is the way the world actually is. The limits you seek to impose here (and elsewhere) are artificial and of your making. I can only tell you the world is analog, not binary. I can’t understand that fact for you.
“No, you really cant separate the components of a philosophy. Because the components are integrated or at least should be into the main body of thought. Any component is a part of the whole and as such would either mean nothing separated from the body or would be useless without the larger context of the main body of work. ”
Bron,
Fundamentalism is a hell of a drug.
Gene H:
No, you really cant separate the components of a philosophy. Because the components are integrated or at least should be into the main body of thought. Any component is a part of the whole and as such would either mean nothing separated from the body or would be useless without the larger context of the main body of work.
We are not talking auto-mechanics but an integrated belief system.
I know this interferes with your anything goes mantra but failing to think in principles is your failing, not mine.
“You cannot separate the man from his philosophy.”
Is that so, Bron?
You can, however, separate the components of a philosophy.
Well . . . you can if you’re not an absolutist.
As to the strong/weak argument? To me, that’s about as productive a conversation as the large/small argument. Preserving liberty has nothing to do with either, ergo, the size and strength of government is irrelevant.
Is a solution to a given problem getting the job done as defined by the parameters of the problem and in accordance to the Constitution and if not, why not? In the event there are multiple solutions, public and private, are there other policy and/or human-civil rights concerns that suggest public over private solutions or vice versa?
This is the only relevant metric to gauging performance to solving a problem. Ultimately, the only form of government “I’m married too” is egalitarian democracy. Everyone needs to have an equal say in how government operates.
All the rest is problem solving.
Some problems government is best suited to address, some problems industry is best suited to address, and some problems simply cannot be solved by either alone or separately. The right tool for the job again appears to be relevant to the solving of a problem. Not an absolutist, one mechanic fixes all silver bullet approach, but flexibility in finding solutions and in selecting mechanisms to address solutions.
I know this interferes with your laissez-faire mantra of free markets fix everything, but being an absolutist thinker is your failing, not mine.