Posted by Herodotus on 10:47:07 06/09/05 (12.77.239.131)
WASHINGTON, June 8 (New York Times) - Janice Rogers Brown, the African-American daughter of Alabama sharecroppers who was confirmed Wednesday to the federal appeals court here, often invokes slavery in describing what she sees as the perils of liberalism.Justice Brown raises an interesting point with far-reaching implications. Starting before our Constitution was ratified, a steady battle has raged about the balance between the rights of the Federal government versus the rights of individual states. In 1861 this battle erupted into civil war, in which 600,000 Americans were killed. Part of Article VI of the U.S. Constitution, often called the "pre-emption clause," says
"In the heyday of liberal democracy, all roads lead to slavery," she has warned in speeches. Society and the courts have turned away from the founders' emphasis on personal responsibility, she has argued, toward a culture of government regulation and dependency that threatens fundamental freedoms.
"We no longer find slavery abhorrent," she told the conservative Federalist Society a few years ago. "We embrace it." She explained in another speech, "If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy - a license to steal, a warrant for oppression."
To her critics, such remarks are evidence of extremism. This week, some Senate Democrats have even singled her out as the most objectionable of President Bush's more than 200 judicial nominees, citing her criticism of affirmative action and abortion rights but most of all her sweeping denunciations of New Deal legal precedents that enabled many federal regulations and social programs - developments she has called "the triumph of our socialist revolution."
Her friends and supporters say her views of slavery underpin her judicial philosophy. It was her study of that history, they say, combined with her evangelical Christian faith and her self-propelled rise from poverty that led her to abandon the liberal views she learned from her family.
"We discuss things like, 'How did slavery happen?' " said her friend and mentor Steve Merksamer, a lawyer in Sacramento, Calif. "It comes down to the fact that she believes, as I do, that some things are, in fact, right and some things are, in fact, wrong. Segregation - even though the courts had sustained it for a hundred years - was morally indefensible and legally indefensible and yet it was the law of the land," he said. "She brings that philosophy to her legal work."
On the California Supreme Court, her opinions have reflected the philosophy and language of her speeches. In an opinion involving fees charged to San Francisco hotel owners, for example, she proclaimed that "private property, already an endangered species in California, is now entirely extinct in San Francisco." In an affirmative action case, she criticized "entitlement programs based on group representation." And in dissenting in a case involving Nike's labor practices, she compared the United States Supreme Court to "a wizard trained at Hogwarts" conjuring up distinctions about commercial speech that she said restricted businesses' freedoms.
On Wednesday, two years after President Bush first nominated her, the Senate voted 56 to 43 to confirm Justice Brown. She was the second of three appellate court nominees who had been blocked by Senate Democrats until a compromise was reached a few weeks ago. Immediately after her confirmation, the Senate voted 67 to 32 to close debate on the third stalled nominee, Judge William H. Pryor Jr., setting the stage for a vote on him on Thursday.
Justice Brown, though, was the focus of special attention from both sides in the Senate. For one thing, she was named to the Court of Appeals for the District of Columbia Circuit, widely considered the most influential appellate court and currently almost evenly divided between Republican and Democratic appointees. And even before her confirmation, however, she was often cited as a potential candidate for the Supreme Court, in part because of her politically appealing life story.
She was born Janice Olivia Allen in Greenville, Ala., in 1949, five years before the Supreme Court struck down segregation in Brown v. Board of Education.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.In other words, when a conflict exists between Federal and State law, the Federal law always has priority. In its 1954 decision in Brown v. Board of Education, the U.S. Supreme Court found school segregation violated the 14th Amendment to the Constitution -- which was ratified in 1868. Yes, it took 86 years from the ratification of the 14th Amendment for the government to rule against school segregation. Why? Well, Justice Brown is right: You can blame it on liberal democracy. Pro-segregationists held a sufficient number of seats in congress, through and beyond 1954, to forestall school integration in several states. It took another 10 years after Brown v. Board for Congress to pass the Civil Rights Act of 1964, and that only happened after a lengthy filibuster by pro-segregationists. Liberal democracy operates on the principle of majority rule, regardless of fairness or legality. Is this problem limited to liberal democracies, or does it transcend the forms of government?
[W]e 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.Later in the same speech, Justice Brown again blames liberal government:
- "'A Whiter Shade of Pale': Sense and Nonsense The Pursuit of Perfection in Law and Politics." (Address to the Federalist Society, April 20, 2000.)
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.Justice Brown obviously has strong feelings about government intervention in society. Brown v. Board poses an interesting paradox, no matter how you feel about liberalism. While you could argue that a liberal democracy maintained racial discrimination in schools for 86 years, it was also a liberal democracy that led to Brown v. Board. Same constitution, different outcome. I can't find anything Justice Brown has said about Brown (no relation to the judge) v. Board, but in her dissenting opinion to a California Supreme Court decision, Aguilar v. Avis Rent A Car Systems, Inc. (her opinion is at the bottom of the page), she argued that racial slurs made by a supervisor to a subordinate at the workplace were protected speech under the First Amendment.
None of us on this court condones ethnic and racial discrimination in the workplace, but the issue in this case is speech, not just discrimination. Speech is unpleasant sometimes. It may be disgusting. It may be offensive. Contrary to the nursery rhyme, it may even be injurious. But, with few exceptions, none of which applies, the state and federal Constitutions prohibit courts from using their injunctive power as a surgical instrument to extricate disfavored ideas from the popular discourse, and this principle applies even here where the ideas in question were, from what we can tell from the limited record, both offensive and abhorrent.Justice Brown was apparently unmoved by the several precedents cited by the court's majority; her dissenting opinion implies that the part of the Civil Rights Act of 1964 which prohibits workplace discrimination is unconstitutional because it violates the First Amendment.
One of the truths we hold to be self-evident is that a government that tells its citizens what they may say will soon be dictating what they may think. [Brown's emphasis.] But in a country that puts such a high premium on freedom, we cannot allow ourselves to be the captives of orthodox, culturally imposed thinking patterns. Indeed, I can conceive no imprisonment so complete, no subjugation so absolute, no debasement so abject as the enslavement of the mind.
Fundamentally, this is a case about equality and freedom. Thus, it is a case about our most basic political ideals; about our highest aspirations and our greatest failures; our toughest challenges and our deepest fears. It is about a bafflingly elusive dream of equality and the freedom, not immune from abuse, to speak words that make others more than uncomfortable. It is a case about equality and freedom and the irreconcilable tension between the two. We are all the beneficiaries of the freedom the Constitution guarantees, and we all pay its costs, even though the price may sometimes be anguish.
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.Justice Brown does not mince her words, nor does she believe in relativism when it comes to interpreting the law. Her fears about government overstepping its bounds and repressing the people have merit. As the 86-year gap between the 14th Amendment and Brown v. Board shows, however, government inaction can result in repression as well. So I think the truth lies not in the virtues of government action versus inaction, but in the virtues of the people in government.