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Saturday, June 28, 2008

Judge Janice Rogers Brown (D.C. Circuit) Quotes

Janice Rogers Brown is a judge on the D.C. Circuit of Appeals. She is one of the most eloquent spokesperson's for the Constitution. Below is a copy of quotes posted by "The People for the American Way." Ironically, they posted these wonderful quotes to show how horrible they think she is. If only there were more judges with this kind of integrity.


Janice Rogers Brown On American Government
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. [“A Whiter Shade of Pale,” Speech to Federalist Society (April 20. 2000)(“Federalist speech” at 8]Where government advances – and it advances relentlessly – freedom is imperiled; community impoverished; religion marginalized and civilization itself jeopardized....When did government cease to be a necessary evil and become a goody bag to solve our private problems? [“Hyphenasia: the Mercy Killing of the American Dream,” Speech at Claremont-McKenna College (Sept. 16, 1999) at 3,4]In the last 100 years – and particularly in the last 30 – ...[g]overnment has been transformed from a necessary evil to a nanny – benign, compassionate, and wise. Sometimes transformation is a good thing. Sometimes, though, it heralds not higher ground but rather, to put a different gloss on Pat Moynihan’s memorable phrase, defining democracy down. [“Fifty Ways to Lose Your Freedom,” Speech to Institute of Justice (Aug. 12, 2000)(“IFJ speech”) at 2][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. [IFJ speech at 3-4]Government acts as a giant siphon, extracting wealth, creating privilege and power, and redistributing it. [Speech at McGeorge School of Law (Nov. 21, 1997) at 18][See also Landgate, Inc. v. California Coastal Commission, 953 P.2d 1188, 1212 (Cal. 1998)(Brown, J., dissenting)(referring to government as “relentless siphon.”)]

Janice Rogers Brown on senior citizens and age discrimination
My grandparents’ generation thought being on the government dole was disgraceful, a blight on the family’s honor. Today’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...Big government is...[t]he drug of choice for multinational corporations and single moms, for regulated industries and rugged Midwestern farmers, and militant senior citizens. [IFJ speech at 2,3]I would deny [the senior citizen] plaintiff relief because she has failed to establish the public policy against age discrimination “inures to the benefit of the public” or is “fundamental and substantial”...Discrimination based on age...does not mark its victim with a “stigma of inferiority and second class citizenship”....; it is the unavoidable consequence of that universal leveler: time [Dissenting opinion in Stevenson v. Superior Court, 941 P.2d 1157,1177, 1187 (Cal. 1997)]

Janice Rogers Brown on the New Deal, the Great Society, and the “transmutation” of the Constitution
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...1937...marks the triumph of our own socialist revolution...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... In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned [Federalist speech at 8, 10, 11, 12]In the last 100 years – and particularly the last 30 – the Constitution, once the fixed chart of our aspirations, has been demoted to the status of a bad chain novel. [IFJ speech at2]

Janice Rogers Brown on the proper “protection” of property
In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned...Protection of property was a major casualty of the Revolution of 1937…Rights were reordered and property acquired a second class status...It thus became government’s job not to protect property but, rather, to regulate and redistribute it. And, the epic proportions of the disaster which has befallen millions of people during the ensuing decades has not altered our fervent commitment to statism. [Federalist speech at 12, 13]At its founding and throughout its early history, this regime revered private property. The American philosophy of the Rights of Man relied heavily on the indissoluble connection between rationality, property, freedom and justice. The Founders viewed the right of property as “the guardian of every other right”….[IFJ speech at 5][P]rivate property, already an endangered species in California, is now entirely extinct in San Francisco…I would find the HCO [San Francisco Residential Hotel Unit Conversion and Demolition Ordinance] preempted by the Ellis Act and facially unconstitutional. …Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government. …The right to express one’s individuality and essential human dignity through the free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion. [Dissenting opinion in San Remo Hotel L.P. v. City and County of San Francisco, 41 P.3d 87, 120, 128-9 (Cal. 2002)(upholding San Francisco ordinance calling on hotel owners seeking permission to eliminate residential units and convert to tourist hotels help replace lost rental units for low income, elderly, and disabled persons)][See also IFJ speech at 4 (warning that without effective limits on government, “a democracy is inevitably transformed into a Kleptocracy.”)]

Janice Rogers Brown on the courts, law and the judiciary
We are heirs to a mind-numbing bureaucracy; subject to a level of legalization that cannot avoid being arbitrary, capricious, and discriminatory. What other outcome is possible in a society in which no adult can wake up, go about their business, and return to their homes without breaking several laws? There are of course many reasons for our present difficulties, but some of our troubles can be laid at the feet of that most innocuous branch – the judiciary…From the 1960’s onward, we have witnessed the rise of the judge militant. [Speech to California Lincoln Club Libertarian Law Council (Dec. 11, 1997)(“Libertarian speech”) at 5-6, 9]But, alas, the decisions of such [supreme] courts, including my own, seem ever more ad hoc and expedient, perilously adrift on the roiling seas of feckless photo-op compassion and political correctness. [IFJ speech at 15]Thus, lawyers have secured the right of topless dancers to perform, but have banished prayer from public life. They have won the right for indigents to take over public spaces, even our children’s libraries, and for the mentally ill to live on streets and shout obscenities at passersby. Legal advocates have guaranteed the right of students to be ignorant by opposing competency tests, and ignored their brazen possession and use of weapons in school. [“Politics: A Vision for Change,” Docket (Dec. 1993) at 15]Politicians in their eagerness to please and to provide something of value to their constituencies that does not have a price tag are handing out new rights like lollipops in the dentist’s office. [Speech to Sacramento County bar Ass’n (May 1, 1996) at 6-7]

Janice Rogers Brown on strict judicial scrutiny for violations of fundamental constitutional rights and the incorporation doctrine
[Beginning in 1937, t]he court drew a line between personal rights and property rights or economic interests, and applied two different constitutional tests…[I]f the right was personal and “fundamental,” review was intolerably strict. [Federalist speech at 12]The dichotomy between the United States Supreme Court’s laissez-faire treatment of social and economic rights and its hypervigilance with respect to an expanding array of judicially proclaimed fundamental rights is highly suspect, incoherent, and constitutionally invalid. [Concurring opinion in Kasler v. Lockyer, 2 P.3d 581, 601 (Cal. 2000), cert. denied, 69 U.S.L.W. 3549 (2001)] [T]he courts overcame these alleged limitations on their powers with ridiculous ease. How? By constitutionalizing everything possible, finding constitutional rights which are nowhere mentioned in the Constitution. By taking a few words which are in the Constitution like “due process” and “equal protection” and imbuing them with elaborate and highly implausible etymologies; and by enunciating standards of constitutional review which are not standards at all but rather policy vetoes, i.e., strict scrutiny and the compelling state interest standard. [Libertarian speech at 7-8]The United States Supreme Court, however, began in the 1940s to incorporate the Bill of Rights into the 14th Amendment…The historical evidence supporting what the Supreme Court did here is pretty sketchy…The argument on the other side is pretty overwhelming that it’s probably not incorporated. [“Beyond the Abyss: Restoring Religion on the Public Square,” Speech to Pepperdine Bible Lectureship in 1999]

Janice Rogers Brown on democracy, capitalism, socialism, and “liberalism”:
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 flaw. We conclude instead that its ends are worthy of any sacrifice – including our freedom….1937…marks the triumph of our own socialist revolution. [Federalist speech at 6-7, 10]In truth, liberalism’s vaunted tolerance and openness is a lie. In America, at least, liberalism is tolerant only of those concerns to which it is indifferent. To those trivialized forms of religious observance which amount to no more than a consumer preference, the culture maintains a posture of tolerance. [Speech to St. Thomas More Society (Oct. 15, 1998) at 8]

Janice Rogers Brown on the Supreme Court’s discredited decision in Lochner v. New York
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.” 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. [Federalist speech at 8]

Janice Rogers Brown on the right of privacy vs. the “right to keep and bear arms”
Curiously, in the current dialectic, the right to keep and bear arms – a right expressly guaranteed by the Bill of Rights – is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions. (citations omitted) But surely, the right to preserve one’s life is at least as fundamental as the right to preserve one’s privacy. [Concurring opinion in Kasler, 2 P.3d at 602]

Janice Rogers Brown on government employers requiring employees to forfeit constitutional rights
In this case and others like it involving the interests of government solely as an employer and the surrender of a constitutional right as a condition of obtaining a mere benefit or “privilege” [i.e. employment], I would argue for a return to an earlier view, pungently expressed by Justice Holmes while a member of the Supreme Judicial Court of Massachusetts: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” (citations omitted) I realize, of course, that for many years Holmes’s view has been out of fashion. …However, to the extent the doctrine of unconstitutional conditions purports to hold that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold the benefit altogether, it seems more a figment of academic imagination than reality. [Concurring and dissenting opinion in Loder v. City of Glendale, 927 P.2d 1200, 1257, 1258 (1997)(striking down city across-the-board testing program for promoted employees while approving requirement for new employees)].

Janice Rogers Brown on natural law
We continue to chip away at the foundations of our success. We dismissed natural law and morality because its unverifiable judgments were deemed inferior to reason. But, then, we drove reason itself from the camp because the most significant of life’s questions defy empiricism. …Only natural law offers an alternative to might makes right and accounts for man’s “unrelenting quest to rise above the ‘letter of the law’ to the realm of the spirit.” [IFJ speech at 15, 17]

1 comment:

Charles Johnson said...

I'd love a copy of her speech to Claremont McKenna. Could you please send one to me?