Is Janice Rogers Brown a libertarian?
[I haven't had a chance to look into this topic as deeply as I set out to, but I figure I better post while the topic is still topical.]
The other day, I read this article in the San Francisco Chronicle, referring to Federal judicial nominee, Janice Rogers Brown, as "an outspoken libertarian". Had the presidential administration that brought us the PATRIOT ACT turned a new leaf? Become champions of individual liberty? Excuse me for being skeptical.
Setting aside the question of whether she is professionally qualified, let's examine a few of the things people are saying about her -- does the "libertarian" label fit?
- PBS: "In Brown's only opinion dealing with abortion, she argued that the court majority's decision ruling unconstitutional a parental consent law for minors seeking abortions would 'dismiss societal values' and would allow courts to 'become final arbiters of traditional morality.' Maybe libertarian. Definitely conservative. Most libertarians, even those personally opposed to abortion, want the government to stay out of abortion decisions. Not just on the abortion issue, but in general, libertarians think the government should be a neutral referee, refraining from promotion of "societal values" and "traditional morality". But the twist here is that Brown is arguing for restraining the government from interfering in parental rights. Is she a libertarian? Depends on whether she is consistently concerned for protecting parental rights or only cares about parental rights when it suits her conservative views.
- PBS: "In another family values case, she dissented from a ruling upholding the validity of second-parent adoptions in the case of a same-sex couple." Not particulary libertarian. Probably conservative. Brown's dissent in this case is a technical argument that the state bureaucracy had interpreted an adoption law more leniently than the legislature intended. The language of her argument doesn't touch on any libertarian values. However, there is a strong conservative, anti-homosexual subtext to her argument. Libertarians are solidly for equal rights for gay and lesbian people. Even so, I wouldn't be so quick to consider this a definitive test case for the rights of a lesbian to adopt her partner's children; the birth parent had broken up with her partner and no longer wanted the child adopted.
- Senator Kennedy's website: "A 1999 dissent drafted by Brown suggested that the First Amendment allows employees to use racial epithets in the workplace;" Libertarian. Brown's concern was for the protection of the right of free speech.
- Senator Kennedy's website: "Brown told a meeting of the Federalist Society that 'where government moves in, community retreats [and] civil society disintegrates'" Libertarian In fact, the tendency of big government to disintegrate civil society is one of this major themes of this blog. It's a shame that Kennedy doesn't realize she has a point.
So, is she more libertarian or conservative? To tell that, we'd need to see how she rules in a case where somebody wants to exert his or her individual rights to do something a conservative wouldn't approve of. Does the reader know of one?
posted by Mike Laursen @ 7:46 PM
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5 Comments:
Not a judicial case but ... one thing I find disturbing about her is her apparent views on religion and her attacks on atheism. And if she questions the validity of the idea of separation between church and state, I'm afraid that makes her a conservative nutjob in my book.
http://atheism.about.com/b/a/165529.htm
http://www.au.org/pdf/janicerogersbrown-letter.pdf (pdf)
Thanks, Stephanie. I'll take a look at these links when I get a chance.
Off-blog, a Libertarian reader points out that even though Brown's concerns in the Avis case were for the right of free speech, her dissenting opinion wasn't necessarily judicially sound. Point well taken. I want to make it clear, I'm not endorsing any of her opinions. What I'm after here is an understanding of her personal motivations.
It's possible for someone who is personally a religious conservative to respect other Americans religious (or non-religious) freedom. But looks like unlikely Brown is our woman on that front.
The Americans United link Stepanie posted is especially interesting. It gives this quote from Brown:
"The United States Supreme Court . . . began in the 1940’s to incorporate the Bill of Rights into the Fourteenth Amendment. Now, that has an interesting effect on how the law about religious expression gets developed. Because they incorporated all of the Bill of Rights into the Fourteenth Amendment, that not only made them binding on the States, that is to say that now the States were covered by the first ten amendments as the Federal government, it also gave tremendous
power to the Federal judiciary, because now they [would] decide at least the minimum level of protection that would be provided for all of
these rights. The historical evidence supporting what the Supreme Court did here is pretty sketchy . . . So if you went by the language you certainly would not get there. They relied on some historical materials which [are] not overwhelming. The argument on the other side is pretty overwhelming that it’s probably not incorporated."
Now that's a take on the Bill of Rights I've never heard before -- that those rights don't necessarily apply at the state level. Warped.
[My anonymous Libertarian reader (I shall hereby start referring to him as "DeepQuote") sent me another off-blog comment on the Janice Rogers Brown topic. Here's what he said.]
You quote Janice Rogers Brown:
"Because they incorporated all of the Bill of Rights into the Fourteenth Amendment, that not only made them binding on the States, that is to say that now the States were covered by the first ten amendments as the Federal government, it also gave tremendous power to the Federal judiciary, because now they [would] decide at least the minimum level of protection that would be provided for all of these rights."
Brown is actually making an interesting point here -- and one I haven't seen before. It is certainly that case that deciding that the Bill of Rights applies to state governments and that compliance is to be decided by Federal courts results in a major power shift to thecentral government. And it is not immediately obvious that this is an entirely reasonable interpretation of the Fourteenth Amendment. Note that this interpretation was developed over many years -- it did not immediately take effect.
(Brown makes an embarrassing error, however. It is not the case that current judicial doctrine argues that every one of the first ten amendments applies to the states. It is selective. For example, the
First Amendment applies, the Second Amendment does not. There does not seem to be a principled argument for which Amendments apply to the
States and which do not.)
You wrote:
"Now that's a take on the Bill of Rights I've never heard before -- that those rights don't necessarily apply at the state level. Warped."
I disagree with your belief that Brown's argument is warped. It is both historically accurate and worthy of discussion.
Judging from "The Federalist Papers", for one source, the original conception of the Federal system of government was one of shared sovereignty in which each state government would be able to extensively pursue its own experiment in democracy. Prior to the Civil War this divided sovereignty was broad and the Bill of Rights simply did not apply to the states:
http://en.wikipedia.org/wiki/United_States_Bill_of_Rights
Supporting evidence can be found in, for instance, the Constitution of the State of New Hampshire which would be partially redundant if the Federal Bill applied :
http://www.state.nh.us/constitution/billofrights.html
(The Free State's BofR is nicely written! See Article 10. ;-)
As for raising the issue, it is far from clear that a situation of a strong Federal government with weak state governments is desirable.
We are used to the First Amendment being used over and over to overturn oppressive laws passed by many states. Yet, could this not be crippling? Is it really safer to rely on the flaky and unreliable Federal judiciary to protect our freedoms or would it be better to rely upon a people who have an understanding and affection for liberty? Do weak state government promote a freedom loving people?
My judgment is that it is more dangerous to have freedom handed down from above as a gift. Are the state governments a greater threat to liberty than the Federal? Judging from the tax code, the Federal
government "wins."
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