Posted on 06/05/2017 4:00:43 AM PDT by SMGFan
Thanks for your response and enlightening reply. A black woman no less, possibly cut from the same cloth as Clarence Thomas. Two blacks on the Supreme Court, one male, one female, at the same time who represent the most faithful adherents to the Constitution as written and originally understood and intended. Who would have thunk it?
I suppose I would need to look further into her record and opinions, but at first look she has an impressive resume that seems to support a belief in the constitutional rule of law that trumps legislation that violates constitutional law. If that is true, she would be a potentially wonderful Justice.
I’m still concerned about her gender. Women who are actually meant to be leaders are the exception, not the rule. Generally, God made women to be keepers of the home and family under their husbands. Most women in powerful roles don’t belong there IMO. They are generally weak, equivocal, and don’t stand for much other than their own aggrandizement. They are usually there because at some point early in their life they decided they were going to scrap their God-given roles as women and compete with men - greatly flawed motivations.
Brown could be one of those exceptions, I don’t know. Maybe she is. God knows, we need SCOTUS Justices who believe in the rule of law of the Constitution over legislation and decisions that are unconstitutional. But SCOTUS is famous for the place where many seemingly “conservative” judges who arrive turn left.
My biggest question at this point would be if she has a consistent record of faithfully applying the constitution (state or U.S. depending on the application) as written and originally understood and intended, to the facts of the case at hand. AFAIC, THAT should be the ONLY criteria for nominating and confirming a judge or Justice. As Robert Bork so eloquently explained in “The Tempting of America” https://www.amazon.com/Tempting-America-Robert-H-Bork/dp/0684843374, the job of a federal judge or SCOTUS Justice is to faithfully and diligently apply the facts of a case to the Constitution as written, and originally understood and intended.
I’ll put a few comments on the thinkprogress.org passage you posted on another reply because although important IMO in general, they’re not on point necessarily to Brown’s qualifications.
holding that religious employers can ignore the federal birth control rules.
I hope she understands that federal birth control rules themselves are unconstitutional and should be nullified.
What was once a fringe view held by a lone holdout is now the law in the second most powerful court in the country.
But courts are not constitutionally allowed to legislate are they? Thinking court decisions are national law is probably one of the most destructive assumptions people, especially those on the Right (the Left loves unconstitutional judicial power) makes about the power of the courts. The Constitution assigns the Court and lower federal courts to hear and decide on "individual cases and controversies" (U.S. Constitution, Art III, Sec 2, Cl 1). A Court decision applies ONLY to the parties of the case and any other case with the same questions of law and facts.
The Left has bamboozled the entire country into accepting national legislative power in the judiciary - a patently unconstitutional concept but one that has advanced the Leftist agenda and greatly harmed our country. We must limit the power of the unelected, life-term judiciary to their constitutional power of hearing and deciding individual cases and controversies, and force national law back where it belongs - on the elected representatives of Congress.
Brown [on] Social Security...“[t]oday’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract.”
Not sure that's a fair assessment. Senior citizens had billions if not trillions of dollars forcibly withheld from their paychecks for social security. The feds owe them and it would be literally grand theft if they didn't pay them back. It is the feds' corrupt social security system itself, not the senior citizens who were forced into it, who are to blame for this Ponzi scheme.
I haven't seen anyone more conservative or the “right” of her. Her writings remind me of Ronald Reagan and Ayn Rand.
Here is just one article where in Randian fashion she rails absolutely obliterates government and socialism. Imo Brown far surpasses even Ayn Rand:
http://ejournalofpoliticalscience.org/janicerogersbrown.html
Writing 50 years ago, F.A. Hayek warned us that a centrally planned economy is “The Road to Serfdom.”3 He was right, of course; but the intervening years have shown us that there are many other roads to serfdom. In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.
It is my thesis today that the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism — has changed not only the meaning of our words, but the meaning of the Constitution, and the character of our people.
Government is the only enterprise in the world which expands in size when its failures increase. Aaron Wildavsky gives a credible account of this dynamic. Wildavsky notes that the Madisonian world has gone “topsy turvy” as factions, defined as groups “activated by some common interest adverse to the rights of other citizens or to the permanent and aggregate interests of the community,”4 have been transformed into sectors of public policy. “Indeed,” says Wildavsky, “government now pays citizens to organize, lawyers to sue, and politicians to run for office. Soon enough, if current trends continue, government will become self-contained, generating (apparently spontaneously) the forces to which it responds.”5 That explains how, but not why. And certainly not why we are so comfortable with that result.
America's Constitution provided an 18th Century answer to the question of what to do about the status of the individual and the mode of government. Though the founders set out to establish good government “from reflection and choice,”6 they also acknowledged the “limits of reason as applied to constitutional design,”7 and wisely did not seek to invent the world anew on the basis of abstract principle; instead, they chose to rely on habits, customs, and principles derived from human experience and authenticated by tradition.
“The Framers understood that the self-interest which in the private sphere contributes to welfare of society — both in the sense of material well-being and in the social unity engendered by commerce — makes man a knave in the public sphere, the sphere of politics and group action. It is self-interest that leads individuals to form factions to try to expropriate the wealth of others through government and that constantly threatens social harmony.”8
Collectivism sought to answer a different question: how to achieve cosmic justice — sometimes referred to as social justice — a world of social and economic equality. Such an ambitious proposal sees no limit to man's capacity to reason. It presupposes a community can consciously design not only improved political, economic, and social systems but new and improved human beings as well.
The great innovation of this millennium was equality before the law. The greatest fiasco — the attempt to guarantee equal outcomes for all people. Tom Bethell notes that the security of property — a security our Constitution sought to ensure — had to be devalued in order for collectivism to come of age. The founders viewed private property as “the guardian of every other right.”9 But, “by 1890 we find Alfred Marshall, the teacher of John Maynard Keynes making the astounding claim that the need for private property reaches no deeper than the qualities of human nature.”10 A hundred years later came Milton Friedman's laconic reply: “ ‘I would say that goes pretty deep.’”11 In between, came the reign of socialism. “Starting with the formation of the Fabian Society and ending with the fall of the Berlin Wall, its ambitious project was the reformation of human nature. Intellectuals visualized a planned life without private property, mediated by the New Man.”12 He never arrived. As John McGinnis persuasively argues: “There is simply a mismatch between collectivism on any large and enduring scale and our evolved nature. As Edward O. Wilson, the world's foremost expert on ants, remarked about Marxism, ‘Wonderful theory. Wrong species.’”13
Ayn Rand similarly attributes the collectivist impulse to what she calls the “tribal view of man.”14 She notes, “[t]he American philosophy of the Rights of Man was never fully grasped by European intellectuals. Europe's predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as the slave of the absolute state as embodied by ‘the people’ — i.e., switching from slavery to a tribal chieftain into slavery to the tribe.”15
Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism's virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental and profound flaw. We conclude instead that its ends are worthy of any sacrifice — including our freedom. Revel notes that Marxism has been “shamed and ridiculed everywhere except American universities” but only after totalitarian systems “reached the limits of their wickedness.”16
“Socialism concentrated all the wealth in the hands of an oligarchy in the name of social justice, reduced peoples to misery in the name of shar[ed] resources, to ignorance in the name of science. It created the modern world's most inegalitarian societies in the name of equality, the most vast network of concentration camps ever built [for] the defense of liberty.”17
Revel warns: “The totalitarian mind can reappear in some new and unexpected and seemingly innocuous and indeed virtuous form. [¶]... [I]t ... will [probably] put itself forward under the cover of a generous doctrine, humanitarian, inspired by a concern for giving the disadvantaged their fair share, against corruption, and pollution, and ‘exclusion.’”18
Of course, given the vision of the American Revolution just outlined, you might think none of that can happen here. I have news for you. It already has. The revolution is over. What started in the 1920’s; became manifest in 1937; was consolidated in the 1960’s; is now either building to a crescendo or getting ready to end with a whimper.
At this moment, it seems likely leviathan will continue to lumber along, picking up ballast and momentum, crushing everything in its path. Some things are apparent. Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.
But what if anything does this have to do with law? Quite a lot, I think. In America, the national conversation will probably always include rhetoric about the rule of law. I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country's founding. The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document. In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the “constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.”19 Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It's because the framers did draft the Constitution with a surrounding sense of a particular polity in mind, one based on a definite conception of humanity. In fact as Professor Richard Epstein has said, Holmes’s contention is “not true of our [ ] [Constitution], which was organized upon very explicit principles of political theory.”20 It could be characterized as a plan for humanity “after the fall.”
There is nothing new, of course, in the idea that the framers did not buy into the notion of human perfectibility. And the document they drafted and the nation adopted in 1789 is shot through with provisions that can only be understood against the supposition that humanity's capacity for evil and tyranny is quite as real and quite as great as its capacity for reason and altruism. Indeed, as noted earlier, in politics, the framers may have envisioned the former tendency as the stronger, especially in the wake of the country's experience under the Articles of Confederation. The fear of “factions,” of an “encroaching tyranny”; the need for ambition to counter ambition”; all of these concerns identified in the Federalist Papers have stratagems designed to defend against them in the Constitution itself. We needed them, the framers were convinced, because “angels do not govern”; men do.
It was a quite opposite notion of humanity, of its fundamental nature and capacities, that animated the great concurrent event in the West in 1789 — the revolution in France. Out of that revolutionary holocaust — intellectually an improbable melding of Rousseau with Descartes — the powerful notion of abstract human rights was born. At the risk of being skewered by historians of ideas, I want to suggest that the belief in and the impulse toward human perfection, at least in the political life of a nation, is an idea whose arc can be traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937. The latter date marks the triumph of our own socialist revolution. All of these events were manifestations of a particularly skewed view of human nature and the nature of human reason. To the extent the Enlightenment sought to substitute the paradigm of reason for faith, custom or tradition, it failed to provide rational explanation of the significance of human life. It thus led, in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight from truth — what Revel describes as “an almost pathological indifference to the truth.”21
There were obviously urgent economic and social reasons driving not only the political culture but the constitutional culture in the mid-1930’s — though it was actually the mistakes of governments (closed borders, high tariffs, and other protectionist measures) that transformed a “momentary breakdown into an international cataclysm.”22 The climate of opinion favoring collectivist social and political solutions had a worldwide dimension.
Politically, the belief in human perfectibility is another way of asserting that differences between the few and the many can, over time, be erased. That creed is a critical philosophical proposition underlying the New Deal. What is extraordinary is the way that thesis infiltrated and effected American constitutionalism over the next three-quarters of a century. Its effect was not simply to repudiate, both philosophically and in legal doctrine, the framers’ conception of humanity, but to cut away the very ground on which the Constitution rests. Because the only way to come to terms with an enduring Constitution is to believe that the human condition is itself enduring.
For complex reasons, attempts to impose a collectivist political solution in the United States failed. But, the political failure was of little practical concern, in a way that is oddly unappreciated, that same impulse succeeded within the judiciary, especially in the federal high court. The idea of abstract rights, government entitlements as the most significant form of property, is well suited to conditions of economic distress and the emergence of a propertyless class. But the economic convulsions of the late 1920’s and early 1930’s passed away; the doctrinal underpinnings of West Coast Hotel and the “switch in time” did not. Indeed, over the next half century it consumed much of the classical conception of the Constitution.
http://ejournalofpoliticalscience.org/janicerogersbrown.html
I agree. His people have had to run through fire after Trump tweets something different. I really want him to refrain from twittering about the SC and the EO. Just not smart and then he said something negative about Sessions and the rewriting the EO.
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