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:
“In one context, a screw holds an atom bomb together. In another context, it holds a children’s swing set together. Same idea. Different contexts. Both internally logical and consistent. Totally different results/functions.”
The screw has a purpose of joining 2 or more things together. Whether it is a swing set or an atomic bomb is not the point. The point is joining 2 things together. The swing set and the atomic bomb are different altogether and have nothing to do with a screw other than the 2 different items can be joined with a screw.
Gene H:
“universal human rights”
there is no such thing as this, there are only individual rights. Universal human rights means nothing.
” There are only the Rights of Man—rights possessed by every individual man and by all men as individuals.”
skiprob,
“That is the biggest crock of BS I’ve ever heard in my life. I bet the individual being sacrifaced had a bit different take on what are acceptable social norms.”
You seek to impose an alien societal norm onto the Aztec culture, which was the focus of the observation. Just like you are trying to do now with presentism. The entire point is that human sacrifice was acceptable to the Aztecs and not considered evil at all, thus illustrating that good and evil are societally defined concepts.
“Just like I have yet to see a Muslim Cleric strap the Bomb to themsleves.”
What you point to is simple hypocrisy, but it does not change that good and evil are defined by social context. In the cultures defined by radical fundamentalist Islam, a suicide bomber isn’t a murderer but, as you recognize, a martyr.
“Have you ever talked to ex-U.S.military personnel and discussed the amount of lies they were told to get them to enlist. The number of victim of this practice are much higher than you would imagine.”
Yes I have and probably not.
“I finally found out the difference between libertarians and people like you. We have ethics and you all would scarfice your grandmother if it were the social norm.”
Ad hominem nonsense and totally missing the point. If sacrificing your grandmother was the societal norm, you wouldn’t know it was wrong because you grew up and lived in a society where that was acceptable. You didn’t so you don’t, but it is a perfect example of you not understanding the error you make with presentism in your analysis of past cultures and part of what is preventing you from realizing good and evil are socially defined. Have you ever seen the movie “Prince of Darkness”? In it, evil is actually a tangible force, matter with malevolent properties. Do you have evidence for good or evil being particulate baryonic matter? No, you don’t, because that’s fiction. Good and evil are not intrinsic properties of the physical universe. They are defined by social context. Nothing more and nothing less.
“Perhaps you should read why government doesn’t work as a good method or creating a good social norn. It actually explains why attocities happen and why governmenst are responsable for the mass attrocities.”
Fallacy of simple cause and polemic outcome determinism based on your particular anti-government ideology. Societal values don’t come from government but from society. Governments enforce the values of a society, not create them, but in their enforcement, they can shape those values. For example 40 years of failure at the War on Drugs – considered societally acceptable at the time it was started – has created a generation who think the War on Drugs is a ridiculous waste of time and money. Society changed. The law lags behind society in recognizing that change. Culture shapes the values of a society – philosophy, art, entertainment, education . . . all go to inform the Zeitgeist which is cultural mores. Culture leads law even though law can influence the path culture takes, both directly and indirectly. Just like walking a dog.
Also, I didn’t just find out the difference between “us” and Libertarians. I’ve know most of you are definition and logic challenged for quite some time. Please, continue to fall into fallacy and illogic though. I find it quite entertaining.
Most of you have your hearts in the right place. You know something is wrong and want to do something about it. Too bad your causal analysis and solutions are generally terrible and a large part of your ideology is based on fiction and bad “economics”. If they weren’t, you might be more than just marginally more effective than the Green Party.
Gene H. you stated that “You seek to impose an alien societal norm onto the Aztec culture, which was the focus of the observation. Just like you are trying to do now with presentism. The entire point is that human sacrifice was acceptable to the Aztecs and not considered evil at all, thus illustrating that good and evil are societally defined concepts.” —- Your trying to tell us what the majority of Aztecs really thought about Sacrifice. You assumption is BS and it is impossible to know unless you lived back then. Under your logic, It obviously then was a societal norm to kill all the Jews in Germany and Russia and was it a societal norm that killed all the Cambodians and the multitudes of people throughout history by their own governments? I can tell you that it was surely a totalitarian society with brutal enforcement of surely a ridiculous number of malum Prohibitum laws. The Aztecs were as close to barbarism as any culture in history. Our nation was founded on the protection of inalienable rights, not some human universal rights. You are just coping out and justifying universal abhorrent behavior by blaming it on just the culture when it is the institution of government and its ignorant followers that are always complicit. If you read my essay you will start to understand how such atrocities happen. I think what you fail to understand most is that most cultures have been highly controlled for many years and government is almost always complicit in the catastrophic outcomes. That it is delusional to believe that an institution whose foundation is born on unethical practices of theft and coercion can create or promote an ethical society. Unless you want to continue to be animals and disrespect inalienable rights, you must open your eyes and see that such institutions have failed us in our cultural endeavors. It’s not rocket science but you have to stop trying to justify government’s complicit actions. Many people are starting to catch on and instead of feeding them with BS give us some solutions.******** How do we stop run-away governments from continuous distroying their own cultures? https://groups.google.com/forum/?hl=en&fromgroups#!topic/HarrietRobbins/TdY6cgWMmY4
skiprob,
“Appears someone is not differenciating between ethics and legality to me. Killing someone for any reason is wrong, except in self defense.”
No. The differentiation is clear. What is not clear is that you are both falling into the fallacy of presentism – when present-day ideas such as moral standards are projected into the past (and possibly the Historian’s fallacy). As we as a species try to define universal human rights, we are creating pan-cultural definitions for good and evil. This has not been the case for the majority of human history. These concepts arose in fairly discrete and isolated cultures and among those varied bodies there is are differences. Also, legality is a reflection of the ethics of a society, not the other way around. Laws are made to enforce societal norms on behavior. Those norms are defined by the collective ethics of a culture. This is why the Aztecs are such a good example. Their norms held human sacrifice to be perfectly acceptable and not evil in the slightest. When you ignore that, you are projecting the values of the present on to the past. For a European example? Consider trial by combat – slightly different scenario, but “legal murder” nonetheless.
*****************8
Bron,
“In fact, everything is interconnected.”
That is just another way ignoring the intrinsic property of discreteness. It’s like saying the world is all 1 or all 0. Everything is most certainly connected on a metaphysical level, but in a real sense it is not. Otherwise you would have no sense of concept; no Law of Identity. Not to mention their would be no language. All ideas and objects would be equivalent. Things can and are described and differentiated and are on a daily basis. Context can and often is important, but the thing about discrete ideas is that you can remove them from one context and place them in another. In one context, a screw holds an atom bomb together. In another context, it holds a children’s swing set together. Same idea. Different contexts. Both internally logical and consistent. Totally different results/functions. You are again arbitrarily assigning unity to a system which is not required to be unitary. It’s a self-imposed limitation on your part, but it isn’t real.
That is the biggest crock of BS I’ve ever heard in my life. I bet the individual being sacrifaced had a bit different take on what are acceptable social norms. Just like I have yet to see a Muslim Cleric strap the Bomb to themsleves. In stead they coerce generally yound kids with a bunch of religious BS to be the martyrs. Have you ever talked to ex-U.S.military personnel and discussed the amount of lies they were told to get them to enlist. The number of victim of this practice are much higher than you would imagine. I finally found out the difference between libertarians and people like you. We have ethics and you all would scarfice your grandmother if it were the social norm. Perhaps you should read why government doesn’t work as a good method or creating a good social norn. It actually explains why attocities happen and why governmenst are responsable for the mass attrocities. http://groups.google.com/group/HarrietRobbins/browse_thread/thread/4dd63a72058c998e?hl=en_US#
”Whenever you tear an idea from its context and treat it as though it were a self-sufficient, independent item, you invalidate the thought process involved. If you omit the context, or even a crucial aspect of it, then no matter what you say it will not be valid . . . .
A context-dropper forgets or evades any wider context. He stares at only one element, and he thinks, I can change just this one point, and everything else will remain the same. In fact, everything is interconnected. That one element involves a whole context, and to assess a change in one element, you must see what it means in the whole context.”
skiprob:
can you understand that?
Bron,
“human sacrifice is wrong even if society says it is good or necessary.”
A value judgment created by your social environment.
The last part of your statement was a straw man.
human sacrifice is wrong even if society says it is good or necessary. Anyway that is why they are called primitive man and that is why the Enlightenment is so important.
If 51% of the people say that chopping people’s heads off is OK then it is culturally acceptable and I should be OK with that.
OK, are you kidding me?
Appears someone is not differenciating between ethics and legality to me. Killing someone for any reason is wrong, except in self defense. Legaliziing it doesn’t make it right only that those doing the killing can get away with it. It is the basic contention of individual rights. No one has the right to kill you unless you have threatened or attached their individual rights to self preservation. At least that the way it’s supposed to be. Government of course always attempts to usurp this basic tenant and many people are complicit to this injustice.
“’First, evil is a societally informed value judgment.’
no it isnt.”
Really. The Aztecs thought human sacrifice wasn’t only moral and ethical but necessary to make the sun rise and the rain fall. The Egyptians had no problem with incest. History is replete with examples of behaviors modern society considers out of bounds that ancient cultures did not take issue with. “Evil” and “good” are both societally informed value judgments. Even the discussion of universal human rights is couched in cultural terms. That the trend over time is toward commonality in agreeing what is right or wrong is a reflection of cultural amalgamation.
Gene H:
“First, evil is a societally informed value judgment.”
no it isnt.
I never said anyone here was a Marxist, I just used it as an example of what I have been trying to say. I used Marx as an example because I knew I wouldnt offend anyone.
Bron,
First, evil is a societally informed value judgment.
Second, even if stipulated that Communism is evil in outcomes, you are making the fallacy of division.
Third, just because you don’t understand something because it lacks a tidy little label doesn’t mean it is not internally logically consistent. It just means you don’t understand it.
Fourth, who in the Hell here is a Marxist? You might as well be looking for Whigs.
Gyges:
Marxism is a philosophy of evil, you cannot separate any of the individual tenets of Marxism and not have those discrete ideas be intrinsically evil. They belong to the philosophy which created them. You cant separate round from ball.
That is why I say you cannot cobble together a philosophy from Jefferson, Marx, Locke, Bastiat and Lenin and have any sort of cogent philosophy at all. The evil, Marx and Lenin, would overshadow the good. Your philosophy would make no sense and you would be a blithering idiot trying to rationalize the various parts with each other. In essence you would be schizophrenic.
skiprob:
you are probably right.
Excuse me, substitue in “pack” for “kennel” in the second example.
“Just as you cannot separate specific attributes of a philosophy from the main body… ”
And yet, you claim that you can separate an attribute out if it’s proven incorrect. Do you really not see that?
I mean, here’s two quotes from you replacing various synonyms of ‘part of your belief system’ with ‘dog’ and various ways of saying ‘separate out’ with ‘run’, and ‘philosophy’ with ‘pack’. The idea is that the individual parts of the belief system are ‘dogs’ making up the ‘pack’ of the philosophy, run was just an arbitrary verb that makes some sense.
The quoted phrase becomes “Just as you cannot run dogs from the pack…”
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?”
Becomes
“If your overall kennel is correct but there is one dog which you have found to be at odds with the main body, why wouldnt you run the dog?”
Again:
“Just as you cannot run dogs from the pack… ”
“If your overall kennel is correct but there is one dog which you have found to be at odds with the main body, why wouldnt you run the dog? ”
Now if you’d care to explain how that makes any sort of sense, or why “throwing out” “the portion” of a “belief system ” is different than “separating” “attributes” of a “philosophy” (other than the plurailty difference between ‘attributes’ and ‘the portion’, which doesn’t really matter), I’m all ears. Otherwise, I’ve already spent way to much time trying to get you to answer why something is both impossible and possible.
“You cannot separate the round from the ball. Just as you cannot separate specific attributes of a philosophy from the main body. If you have a square ball, something is wrong and needs to be corrected. If you have a square ball it is not a ball.”
Showing several things:
1) A false analogy. Big time. But more on that in a minute.
2) Begging the question that unity is a principle characteristic required for a philosophy to logically valid.
3) Shows a fundamental misunderstanding of the Law of Identity. This is where the false analogy comes back in, full circle as it were. You are mistaking comparing an intrinsic primary property of something (round is to ball) to something that by distinction and definition is also an intrinsic primary property (discrete is to set of ideas) and saying one intrinsic primary property is valid but the other is not. You are also showing absolutist thinking again and the fallacy of composition. Just because some ideas within a subset of ideas is discrete and severable does not mean all ideas within that subset are discrete and severable. Discrete is an intrinsic property of an idea: either it can exist as a whole on its own separate from another construct or it cannot and is therefor not discrete but dependent (another and inverse intrinsic primary property).
“Ask of each and every thing, what is it in itself.”
skiprob:
I am not ignoring his question, I have answered it above more than once.
You cannot separate roundness from the concept of ball. Roundness is an attribute of a ball. You cannot have a square ball. You can have a ball made of leather, wood, steel, glass, stone, plastic, rubber and the ball can be many different colors and textures but it has to be round for it to be a ball.
You cannot separate the round from the ball. Just as you cannot separate specific attributes of a philosophy from the main body. If you have a square ball, something is wrong and needs to be corrected. If you have a square ball it is not a ball.
“as you cannot separate specific attributes of a philosophy from the main body” —– I have know idea what you are saying. I can’t even argue any perspective. Perhaps you know what you mean but you are not communicating a cognitive perseption to the rest of us. My answer to your quote would be “why not”. My answer is even incoherent because your statement may have some specific meanings to your but to the rest of us it is not giving us enough understanding of what you are trying to say.We are not telepathic, we can not disipher what you mean unless you are more specific in your explanations.
Bron,
So you’re going to just ignore the question I asked?
The ultimate logical fallousy – if you can’t win the debate – ignor the important questions. I dont; know how may times people have done that it various debates. Politicians are pros at that.
Gyges:
I dont accept that any areas need to be regulated. I think they would do just fine if left alone and people are allowed to trade with each other.
Which is my point, if I think markets work, why would I think they only work sometime? It would be like saying that 2+2 = 4 but 33+1 = 35. You cannot believe that addition is one thing for 0-9 and another for 10 on.
Gyges,
“in order to take it you’ll have to accept that you can be for the free market and admit that (theoretically) some markets should be regulated. ”
Why . . . that sounds strangely familiar . . .
There is by the way an easy out here, but in order to take it you’ll have to accept that you can be for the free market and admit that (theoretically) some markets should be regulated. Just like admiting that the Bible isn’t all the literal truth makes you accept that there are some teachings and prescripts that may be incorrect.
Which, as I said from the get go, is why I suspect you need your philosophy to be an indivisable whole.