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.
Follow Doug Kendall on Twitter: www.twitter.com/myconstitution
Jamin Raskin: Mitt Romney's Constitutional Advisor, Robert Bork, Continues the War on Women's Rights
montestruc (04 23 2012 at 5:24pm) writes, “It is blindingly obvious that the US government is not the American people, and does not conform to the will of the people when it does not wish to.”
If you talk to enough Americans outside of your circle of people who share your views, you find that:
We are about equally divided on both sides of most issues.
Or in the case of many issues, our opinions switch from side to side, as if the Real World were just another form of television. As if, say, we could go in and out of wars as easily as we change channels between reality shows.
Or sometimes one portion of the population get a strong-enough grip on an issue that, even though they may hold the minority view, their vehemence dominates political responses.
____________________
This is why America is a representative democracy—in which we elect employees to study the issues and make the best choices for preserving our liberties and moving us forward.
When we, the people, interfere too much in our elected employees’ work, they can’t do their jobs well.
____________________
One key thing about the United States of America is that we consistently get the government that we elect. Whether we want to take responsibility for that or not.
Regards,
(($; -)}
Gozo!
Obamacare was passed over a tsunami of popular opposition, nor can any reasoable person argue that it was in the best interests of the people. It is a boondoggle giving money to rich insurance firms, nothing more.
I recognize the sentiment behind this thought: none of us are happy with what our government does these days.
____________________
If our government is not made up of American citizens, something has gone farther wrong than is generally known. Please provide some concrete evidence that we are not selecting our government officials by majority rule.
And if anyone believes that we can operate without government at all, please make that case.
____________________
It strikes me that we Americans are divided into about two camps, of roughly equal size. One side seems focused so hard on getting rid of government—or at least on reducing it to its most-minuscule size—that the other side can do little but push back, hoping to retain some benefits of our shared system.
____________________
From where I sit, it seems that at heart, all Americans oppose Big Government and Big Business. We are a liberty-loving people who find it challenging, as well as unpleasant, to make any compromises with our individual liberties.
The question is whether we have a valid choice, if America is to survive.
____________________
Compromise was the antidote to tyranny in 1776. This has not changed.
Regards,
(($; -)}
Gozo!
Obama promised to end the abuses of the patriot act. So much for Obama, so much for your honesty.
montestruc (01:38 PM on 04/28/2012) writes, “...So much for Obama, so much for your honesty.”
____________________
This is the second, recent time that I have been accused of dishonesty. Anyone following a permalink to my posts can find that accusation, by “flyovermark.” (In the end, the gentleman acknowledged my good-faith participation in our discussion. Though to be honest, he did not specifically recant his prior accusations.)
I said, there, that I can’t see any point to posting to an online “comments” site using disingenuous tactics, just to win arguments against anonymous posters in cyberspace.
____________________
I post here in hope of helping to shrink the rift between the two sides in our divided nation. I assume that’s why most people come here:
We are frustrated, all. We are angry, all.
What reason could lead any of us be less than completely honest?
____________________
I believe in the power of “we, the people.” I also believe that “a house divided against itself cannot stand.” No one will accomplish anything by coming to places like this, and trying to win arguments by browbeating opponents into submission. (As if that were even possible!)
So if anyone wants to accuse me of malfeasance in my words here, let them. I can handle anonymous insults that come my way over the Internet. My shield of best defense is our shared one:
“E pluribus unum.”
Regards,
(($; -)}
Gozo!
The laws had no such intent. The intent of those laws is most accurately stated as to improve the political position of progressives.
Lochner (the specific case) was about a coelition of union and big business bakers trying to precent smaller mostly immigrant bakers from selling bread at competitive prices with union bakers.
http://libertylawsite.org/post/rehabilitating-lochner-a-law-and-liberty-symposium/
Lochner was an immigrant from Bavaria who worked for a number of years as a baker before opening a small bakery,, Lochner was on friendly terms with his workers, whom he labored alongside, and on occasion allowed them to work extra hours in violation of New York’s law. Small family bakeshops often kept odd hours, which allowed for much idle time, as bakers waited on the dough, or other elements of the production process: “A ten-hour law . . .would drive out of business many old-fashioned bakeries that depended on flexible labor schedules”. Thus larger bakeries—often supported by the baker’s union—stood to benefit from that law at the expense of smaller bakeries.
In response to a Gozo post, flyovermark (10:07 PM on 04/20/2012) writes: “The distinction between ‘public good’ and ‘general welfare’ should be obvious. The former assigns ‘good’ to the ‘public’; the latter does not assign ‘general welfare’ to anything....”
____________________
Here’s one fundamental difference between the “Right” and “Left” ways of looking at our nation:
The Right perceives our government as “The Other.”
The Left perceives our government as “Ourselves.”
____________________
If you believe we must defend our liberties against “The Other,” then you’ll consider the Left’s perspective as naive foolishness, dedicated to hobbling ourselves under restricted liberties.
If you believe that our government, “We, the People,” is the tool for coordinating our common good—defense, roads, healthcare, commerce—then you will find frustration in the Right’s intransigence against using our shared tool, instead insisting we create something new.
AKA “Reinventing the wheel” of government.
You also might perceive the Right as paranoid.
____________________
If our structure for common good is “The Other,” then we must hold that structure at bay, and create sub-structures to perform those common tasks.
If our structure for common good is “We, the People,” then we can focus on using government to coordinate those tasks for which government exists.
____________________
The difference shows a disadvantage for those on the Left, who believe that we are “one nation, indivisible.” The Left is always held hostage to the divisive perspective of the Right.
Regards,
(($; -)}
Gozo
The question by Gozo is posed as an observation,
"First, the notable distinction is the one made between “public good” and “general welfare.” I can’t think of a meaningful distinction between these two."
The explanation for the distincton comes as a paragraph from flyover,
"The distinction between "public good" and "general welfare" should be obvious. The former assigns "good" to the "public"; the latter does not assign "general welfare" to anything, let alone to the "general public". The phrase has to be completed to ascertain just where the "general welfare" is assigned: "...the general welfare... OF THE UNITED STATES." Since this justification for the power to levy taxes comes from the Constitution for the United States, the document that charters the Federal government, we can conclude, in this instance, that "the general welfare of the United States" refers directly to the general welfare of the Federal government, and nothing else."
Apparently Gozo was unable to resist the impulse to edit the paragraph; the very same impulse that led to his confusion about the distinction between "public good" and "general welfare" that the paragrah explains.
FAIL
That is a fair appraisal.
Perhaps a better way to say it is,
"The right draws a distinction between "the nation - We the People", and "the government - the United States".
The left sees no difference between the two at all.
______________
If our structure for common good is individual liberty, then we must limit the powers of government to infringe upon, or deny outright, individual rights, and then use our freedom in a free society to pursue the common good according to the dictates of our own conscience, and not according to the dictates of our own government.
If our structure for common good is collective liberty, then we can focus on using government force to coordinate those tasks for which the individual is allowed to exist.
Regards,
(($; -)}
Gozo
I don’t understand what this means.
Regards,
(($; -)}
Gozo!
flyovermark (04/19/12: 2:01 PM) writes, “‘Most’ conservatives paint progressives with a broad brush because progressives are devilishly difficult to define....‘Some’ conservatives just wear pointy boots, so that they can squash progressives that hide in the corner along with marxists when the lights come on.”
I’ve been giving this comment some thought for a while, and I don’t feel confident that I understand it. The first sentence seems to compliment Progressives for the depth of their thinking, but the second sentence seems possibly to belittle Progressives, either as Marxists or as squash-able like bugs.
Meanwhile, here in Texas, a lot of us wear pointy boots.
Would you mind explaining your “points”? In particular, do you find room-enough in America for Conservatives and Progressives, or just for one or the other?
Regards,
(($; -)}
Gozo
You have a pretty good handle on the second statement. All of the greatest departures from the founder's principles of government and American traditions have come from an ideology in some way based upon the work of Carl Marx or his confederates, and the progressive agenda is no exception. Birds of a feather, as they say. "Some" conservatives don't bother with degrees of marxism, and are content to take on a progressive whichever way the progressive presents himself.
"Look, sir, you talk about the High Command and the Luftwaffe, and then you talk about the Gestapo and the SS. To me, they're the same! We're fighting the bloody lot! There's only one way to put it, sir: they are the common enemies of everyone who believes in freedom. If the High Command didn't approve of Hitler, then why didn't they throw him out?"
Conservatives have a lot of tolerance for a wide range of political thought, and most all are welcome in the Great Experiment. We hope to win you over to conservatism, but tolerance doesn't seem to be reciprocated. Unfortunately, progressives seem to have an agenda to replace the founder's vision with their own, as the two are not compatible, and cannot be reconciled. We regularly hear progressive proclaimations that the Constitution is outdated, that constitutional government has failed, that we need a New Deal, or we are all socialists now. Which leaves us with one side standing with the individual liberty possible under limited government, and the other side seeking to impose collective obligation to a social democracy under an unlimited central government.
If progressives don't throw out Marxist theory, then "Big X" answers your final question perfectly.
I do see one thing I can respond to, when you say, “Conservatives have a lot of tolerance for a wide range of political thought, and most all are welcome in the Great Experiment.”
I’m assuming you consider yourself “Conservative.” That said, your “broad brush” seems to have labeled me as a “Progressive” or “Marxist”—which you seem to believe to be the same thing. I don’t see any of those labels applying to me, but you’re welcome to suit yourself.
In labeling me that way, and then arguing against flaws you see in those so-labeled, you’re fighting a “straw man.” If you ask me, the singular limitation on the Conservative perspective is its “straw man” perception of the other side of our political divide. The accusations succeed in keeping “Marxists” (your term) on the defensive. When what we all really want is to be working to move America ahead.
Maybe Conservatives see the world only in Black and White. If this is the case, then their “tolerance” of my thoughts strikes me as meaningless. The black paint on the broad brush just keeps slapping me in the face.
Regards,
(($; -)}
Gozo
"The laws of the United States hold that a legal entity (like a corporation or non-profit organization) shall be treated under the law as a person except when otherwise noted. This rule of construction is specified in 1 U.S.C. §1 (United States Code),[11] which states:
In determining the meaning of any Act of Congress, unless the context indicates otherwise-- the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
http://en.wikipedia.org/wiki/Corporate_personhood
In other words, you don't know what you're talking about.
1. Taxes are collected for the purpose of serving the public good. The public good being things like roads, military, police, energy infrastructure, education, judicial system, etc.
2. These things are what makes civilization possible. After all, if you don't have security, laws, or infrastructure, then how could one run a business?
3. Taxes are a redistribution of wealth. That is exactly right. But it is for the purpose of building a civilization that everyone will benefit from and would not be built otherwise. So in other words, it is taking from individuals for the purpose of benefiting everyone (including said individuals) as a community.
4. Without this civilization, violence, corruption, poverty, etc. will ensue. BECAUSE THERE WILL BE NOTHING TO STOP IT.
So is this redistribution "feeding a habit?" Sure. Feeding the habit of having a stable civilization. Freedom means freedom from the threat of death, corruption and anarchy. Does it require a little personal responsibility in the form of paying into the system that maintains your freedoms? Why yes, yes it does.
Taxes are merely the price one pays for the government of a civilized society.
Frank Padia, below (1:55 PM), writes, “1. If you beleive the government is the source of all wealth...2. If you beleive it is possible to tax only the ‘wealthy’...3. If you cannot see the mess and economic ruin caused by the ‘entitlement mentality’...4. If you think comparing Sweden...as proof socialism can work in the U.S....5. If you think anyone who disagrees with you or says anything you do not like should be slienced...then you can vote Democrat. But don”t come crying to me when the economy crashes, healthcare is non-existant and the only ones with power, money and the freedom of free speech are those in the government...”
No one on the Left believes the things that Conservatives believe they do. Almost every example of Progressive thought as described by a Conservative person makes a generalization so greatly overstated as to be ridiculous.
No one believes any of the five items listed in Mr. Padia’s post. No one.
____________________
Conservatives likely paint Progressives with a broad brush because their own views seem to be as ideologically limited as those they perceive in others.
It’s challenging to have constructive discussions between the two sides of the Great Political Divide, when so many of the participants (including many on the Left) hold such simplistic views of the complicated realities of life in contemporary times.
Regards,
(($; -)}
Gozo
"Some" conservatives just wear pointy boots, so that they can squash progressives that hide in the corner along with marxists when the lights come on.
What makes the Progressives so difficult to define is that their perspective is more-complex than the Conservative side.
It seems to Progressives that Conservatives want to simplify things too-much.
The appropriate term is “simplistic.” The accusation that Conservatives see the world in Black & White speaks to this.
Progressives see Conservatives as taking a “Shoot first, ask questions later” approach to challenges. This is excellently exemplified in the Right’s defense of the Second Amendment (“shoot first”) and the Left’s defense of the First Amendment (“Let’s talk about it, talk about it, talk about it”). $; -)
Regards,
(($; -)}
Gozo
Yes, a right that ignores honesty, integrity and the human condition in the name increasing one's wealth. Slavery was based on this idea, sweatshops are based on this idea, even thieves and killers work with this basic concept in mind. Is this realy where we want to return to as a society?
If we thought that “job creation” and other economic activity were deferred by economic “uncertainty,” it would be interesting to see what effects legislative “uncertainty” might impose on the American people and our faith in “the rule of law.”
The risk of legal precedent being bulldozed under at any time—by alternating ideologies appointed to dominate the Supreme Court—creates a level of uncertainty greater than that which the ever-present uncertainty of commerce imposes.
____________________
The 1964 Civil Rights is manifestly unconstitutional according to terms that the current Supreme Court’s majority seems to believe.*
Where would America be if that apparent abridgement of individual and commercial liberty were to be overturned by challenge before Chief Justice Roberts’s Supreme Court?
Well, for one thing, our current President would unlikely hold his office.
And any unconstitutional infringement on the commercial liberties of America’s corporate “citizens” could return to their ideologically pristine, pre-PPACA state.
Regards,
(($; -)}
Gozo!
__________
*Not on issues of race, but of mandated commerce.
Joseph Veverka (03:30 PM on 04/18/2012) writes, “Supreme court needs a super majority of justices when it comes to overturning previous rulings other wise the court risk becoming irreverent and a puppet of the current house majority, be it GOP or Dem.”
____________________
Mr. Veverka may be correct that this would be a prudent choice. But given that the Court needn’t bow to popular opinion, and especially given that American popular opinion currently seems divided approximately right down the middle between Right and Left, it seems unsafe to assume that the Court will yield to such prudence. In which case, these nine members would join the other branches of our government in relinquishing “the full faith and credit of the United States government.”
____________________
“Conservative” is a term that one side of the electorate choose for themselves. If what contemporary “Conservative” American would continue to do—in rolling American social policy back a hundred years or so—constitutes “Conservative,” one fears to contemplate what terms such as “Regressive” and “Reactionary” might mean.
Regards,
(($; -)}
Gozo