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
Bron,
Look, I agree, self examination rocks.
I honestly don’t see how you can change parts of a philosophy if you can’t separate out those parts from the whole, and so far you haven’t really tried to explain how that happens, all you’ve done is given examples of parts of philosophies that you feel can’t be subject to change and parts of the philosophy that you feel can be changed. Which is fine, but fundamentally only proves that there are discrete parts of those philosophy (some that can change and some that can’t).
So I’ll ask one last time: How can you not be able to separate out parts of your philosophy, and still have (some) discrete modifiable parts? It just doesn’t follow linguistically, either the parts can be separated out (even if only under specific circumstances), or they can’t.
It makes no sense to say “(Noun_X) can’t (verb_Y). Sometimes you need to let your (noun_X) (verb_Y).”
skiprob,
“Debating over just philosophical compenents doesn’t appear to historical achieve anything or signifcantly advance improvements to much degree.”
Exactly. All philosophical discussions are ultimately limited. Problem solving is where the rubber meets the road.
“Something needs to be reconciled to achieve a consistent view in my opinion, the others dont think that is necessary and that your overall philosophy can consist of a little from Jefferson, a little from Marx, a little from Locke, a little from Kant, a little from Lenin, etc. How do you reconcile that? Marx’s world view was far different than Jefferson’s.”
You are looking for consistency in the wrong place if you insist on unified philosophy being mistaken for integrated. The labels are ultimately just for convenience in describing certain world views. Ultimately the only consistency that matters is internal consistency in the logic of your philosophy whether it is syncretic or dogmatic. Beyond that? It’s how problems are solved and what’s the optimal method to achieve the optimal result. And the truth of the matter is not all problems are created equal, not all solutions are created equal and not all tools are created equal. We both agree government is currently broken. We don’t even disagree in most part as to why. Where we differ most is in solutions and our fundamental approaches to problem solving as informed by our choices in operational principles. That some of our arguments could strip paint is merely entertainment compared to the fact that we both see dysfunction and the need to make adjustments to how things are done in politics and law. As I alluded to the other day, right, wrong, whatever. The key is making as many arguments for as many positions as possible. The reader will ultimately make up their own minds if they are critical thinkers. That is the best you can hope for; influence.
skiprob:
philosophy underpins law, science, economics, sociology, etc.
If your philosophy isnt good then your economics isnt going to be good either.
What these people are saying is that I can have a shitty economic philosophy which doesnt effect any other area. What I am saying is that my overall philosophy effects my thinking on economics and that the 2 cannot be separated. I am also saying that if my thinking on economics is not consistent with my thinking on law then there are some options:
1. my overall philosophy is not good
2. my thinking on law is at odds with my overall philosophy
3. my thinking on economics is odds with my overall philosophy
4. my thinking on law contradicts my thinking on economics
Something needs to be reconciled to achieve a consistent view in my opinion, the others dont think that is necessary and that your overall philosophy can consist of a little from Jefferson, a little from Marx, a little from Locke, a little from Kant, a little from Lenin, etc. How do you reconcile that? Marx’s world view was far different than Jefferson’s.
An individual’s philosophy is in my opinion, how best to live life, is substantially different from group dynamics. One person is willing to give up their freedom for protection, especially women, where myself, I’m not. Who’s right becomes a matter of choice. Is it wrong to purchase protection if you feel it necessary? Of course not. But is it wrong to force me to buy protection? I say yes. You have to be very specific when you are debating the differentials between individual and social issues and it gets a bit confusing to me when people are debating philosophy to follow their logic because of this. I’m a libertarian and it feels very consistent and ethical to me. Philosophically I have taken from a lot of people, Marx not being one of them. I’ve assuredly spent to much time in my life trying to improve the human experience for the majority which has not benefited me much or my family. However, I’ve always thought that I perhaps may have the potential to do something that could have profound affects. I’m surely a proponent of Jefferson and Paine and I like their social philsophies very much. They appear to have been both good men. That may not answer your questions so it is only you that is responsible for your philosphy, since it is only you that has to live with it.
Philosophy is just one component of socio-economics – what I explain as the study of civilization in respect to it’s laws and the systems used in determining them. Individual and group psychology, economics and sociology all play tremendous rolls in our society. Debating over just philosophical compenents doesn’t appear to historical achieve anything or signifcantly advance improvements to much degree. You’re all pretty bright people but other than advance your perceptions of one anothers intellect what are you trying to accomplish?
Gyges:
“Either the parts are of a philosophy are discrete and can be separated from the whole for the sake of modification, or the philosophical parts can’t be separated. I see no way to modify individual parts if you can’t separate them from the whole.”
In my opinion you can have faulty information which is at odds with your overall philosophy but that you dont recognize [yet] as contradictory. Once you do recognize the contradiction, you re-evaluate your entire philosophy or this one area so that you maintain an integrated philosophy. If new knowledge arises it may cause you to change your entire philosophy.
If someone proved that God does not exist it would not change the Golden Rule. All it would do would change the way you look at the Golden Rule. Instead of applying the Golden Rule out of fear/love for God, you would apply it because you want to be treated well and you cannot expect from others that which you are unwilling to give. The Golden Rule can exist whether there is a God or not.
But you cannot, if you believe in the Golden Rule, make exceptions for people with low IQ’s. But you can say my philosophy is wrong concerning people with low IQ’s to be fully consistent I need to treat people with low IQ’s the same as I treat people with regular IQ’s. A discrete part of a person’s philosophy has to fit in with the larger picture. You cannot separate the particular from the foundational principle(s).
gbk:
interesting story. And makes quite a bit of good sense.
It isnt socialistic capitalism. The vendors were operating in regards to their self interest. They wanted to maximize profits and maintain a large [as possible] customer base. They figured out how to do it, they came up with a way to serve their customers and themselves in a mutually agreeable way. Each receives a value from the other, you receive a reasonable quality of vegetable and they receive your cash.
The same thing probably happens at the farms where the vendors buy their produce to sell to you.
That is what happens in business all the time: voluntary cooperation.
I am assuming of course the vendors did this without government coercion.
Bron,
“I read that too quickly. Apologies.”
Apology accepted, thank you.
I would just like to share a personal story with you. This will take some time to tell, but I hope that you read it all with an open mind before you comment, maybe let it sink in for a few days.
I’ve lived for fifteen years in places other than the United States which is the country of my birth and early childhood, familial ties, and where I live now. The story I’m about to tell is very simple as it concerns the daily purchase of vegetables.
In a country situated in the Middle East, I purchased vegetables everyday from push-cart vendors on the street that I lived. Some push-cart vendors specialized in one type of vegetable, some would have three or four.
None of the push-cart vendors would allow a customer to select the vegetables that were being purchased, they would do this. At first this struck me as odd and self-defeating as the vendors would invariably give me, as an example, two great tomatoes and two mediocre ones when there was obviously two other great tomatoes there. The mediocre ones were not rotten or anything, they just weren’t as “good” as the great ones.
Over the course of two years, (I lived there for five), I eventually ended up usually purchasing vegetables from the same push-cart vendor as a matter of convenience of timing and familiarity. After two years my skills at the language were not fluent, but neither were they severely lacking.
One day I asked him, as best I could, why no push-cart vendor would not let me pick out my own vegetables. Between my non-fluency of his language and his non-fluency of English it was eventually explained to me that if they allowed every customer to pick the best vegetables they would not have many customers, that all the vendors had many people on the street that I lived on that also purchased from them at a later time in the day and that all my neighbors relied on the vendors to provide them with acceptable produce.
I understood this to a degree, but the real lessons from such a simple life experience didn’t sink in until many years later when I reflected back to this and realized the inherent wisdom of these vendor’s approach to product distribution.
The push-cart vendors were able to sustain their customer base because all were essentially assured of obtaining produce that was acceptable even though not every vegetable was the best that was available every single day. But over time there was no great disparity between what a vendor gave me versus one of my neighbors.
The residents of the street were relaxed in the knowledge that they didn’t have to “fight” or “show up early” to get acceptable produce.
Make no mistake, the push-cart vendors were hardcore capitalists. If you didn’t have the money you didn’t get the product. In my five years there I was granted credit long enough to run upstairs and get more money.
It was the method of distribution that struck me, and still strikes me. It was fair, it was equitable, and if one thought that any particular vendor was not being so for any reasons there were many other vendors to choose from.
Is this a form of socialist capitalism? I don’t know, but it worked and caused no animosity. I saw it then and still see it now as cooperation.
Can this simple parable of a distribution model of five years on a single street be scaled to meet the expectations of the world population? I doubt it; but there is something there that should at least be thought about.
Gyges,
It’s a tiny icon. The only reason I got it was the lobes of the central distribution, but my first thought at looking at was indeed, “Huh?” I think your boss will cut you some slack on that one. 😀
Gene,
“I think that’s supposed to be a Mandelbrot set, Gyges.”
I’m so fired.
Bron,
One last try:
I have a car. My car has a wide variety of discrete parts, some of which are required to run the car, some are not. In addition, there’s a wide variety of things out there I can add to my car, or substitute for parts that already exist in my car. If you say “you can’t really separate out the constitute parts of the car,” you’d be wrong, but you COULD say that it “allows for constant evaluation and modification”
I have a body. There’s lots of individual parts of my body, but they’re all useless unless taken as a whole (for the sake of the analogy we’re ignoring organ transplants) . You can’t say that my body “allows for constant evaluation and modification” but “you can’t really separate out the constitute parts of the body,” is entirely accurate.
Either the parts are of a philosophy are discrete and can be separated from the whole for the sake of modification, or the philosophical parts can’t be separated. I see no way to modify individual parts if you can’t separate them from the whole.
gbk:
I read that too quickly. Apologies.
Bron,
“I dont think I have pretended someone esle wrote them.”
Read more carefully, Bron; that is not even close to what I said.
Someother time,Bron.
gbk:
I dont think so, you do. you havent given me any reason to think otherwise.
I dont think I have pretended someone esle wrote them.
Bron,
“I dont think the 2 statements are at odds with each other. For example I believe in free markets . . .”
I’m not interested in your expansions, Bron. I just wanted to point out that these statements:
“No, you really cant separate the components of a philosophy,” and,
“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?”
seem to be in direct opposition to each other. If you don’t think so then maybe you should read them again with fresh eyes while you pretend someone else wrote them. The contradiction will pop right out.
“Either the idea works across all sectors or it doesnt work.”
A self-imposed false dichotomy.
gbk:
I dont think the 2 statements are at odds with each other. For example I believe in free markets, to do so I cant separate out banks and say they should be run within strict regulatory guidelines. Either the idea works across all sectors or it doesnt work.
If I regulate banks, I do not have a consistent free market philosophy. And I really dont believe in free markets do I?
But that doesnt mean I cant see the error of my ways and upon learning new information or properly looking at existing information I decide that regulating banks is a bad idea and at odds with my overall belief system.
And what gbk said.
Bron,
All you are doing is illustrating your blind spots in thinking.
“a discrete idea exists within a broader body of knowledge.”
Discrete in context means constituting a separate entity or individually distinct. That is it may be a subset of a certain grouping of knowledge doesn’t negate its intrinsic discreteness. Discrete is a property in and of itself.
“Which is why you have to make sure your belief system is integrated from top to bottom. ”
Not unless you are making up a meaning for discrete that isn’t real you don’t. Your insistence that a belief system must be integrated is based on your belief in absolutisms which is rooted in your propensity to think binary. It’s a belief, but it is not a fact.
Integrated in context means to form, coordinate, or blend into a functioning or unified whole. It doesn’t mean it needs to have a nifty label. It just has to work as a whole because its internal logic is consistent.
The only thing required of a belief system is belief. Rationality is not required. In fact, for some systems, critical thought is antithetical to the system itself – for example what Gyges points to about Fundamentalism. I prefer not to operate off of beliefs. Operational principles are too important not to be grounded in reality.
In any philosophical and/or ethical system, all that is required is that it be internally consistent in order for it to be properly integrated. It doesn’t need to fall into a neatly categorized box for your understanding. A well-thought out syncretic philosophy is what most free minded critical thinkers possess. A=A but knowing what A is in and of itself is critical. Not everything has a perfect neat label. Especially personal philosophies and operational principles.
You are also confusing thought and action in an attempt to imply indivisible unity where none exists. We don’t have thought crimes. All crimes have an actus reus component even when mens rea is relevant to the nature of the charge and/or sentencing. Of course you can separate a man’s thoughts from his actions. His internal contradictions may even be at the root of his crimes, but it is ultimately action that which makes a crime a crime.
A discrete idea is an idea that stands alone and has identity and utility beyond the context in which it is discussed.
Just like a screw.
Bron,
While I was typing it seems you quoted yourself and attributed it to me. And then you attributed these strawmen to me:
“So what you are saying is that you can separate the man from the actions? So a man can hold a belief system of love and forgiveness and at the same time be a serial killer? So I can separate the man from his actions because he is a believer in love and forgiveness?”
You derived this from my two sentences about syncretic thought?
That’s amazing.
Bron,
How is this integrated, Bron:
Bron’s Axiom #1
“No, you really cant separate the components of a philosophy.”
Bron’s Axiom #2
“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?”
Where do you go from here? Obviously, you have to belive in Axiom 1 or 2, but not both. If you get rid of axiom 1 then you have to admit that it was a rash statement and actually be in agreement with other posters.
If you get rid of axiom 2 then this thread will become an infinite loop while you realize the need for axiom 2 again, and again.
GBK:
“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.”
So how is that at odds with what I said, I would really like to know.
So what you are saying is that you can separate the man from the actions? So a man can hold a belief system of love and forgiveness and at the same time be a serial killer? So I can separate the man from his actions because he is a believer in love and forgiveness?
How exactly does that work?