An Open and Shut Case

At No Left Turns, Richard Adams brings our attention back to the words and wisdom of Laurence Tribe, Professor of Law at Harvard, and the supposed "clear case" for the constitutionality of Obamacare.  Tribe wrote an op-ed for the New York Times last February and argued that "There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb." Here is more from Tribe:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

But is not Tribe wedded the to theory of a living constitution?  Why then should he still care about precedent based on what the New Deal Court said 70 years ago?  The Constitution has surely evolved since that time, and it would be absurd to chain ourselves to past understandings of the law.

Also, as Richard points out in his post, we should take care to note Tribe's definition of "clear" which he gives in his book, Constitutional Choices.  The definition:

Whenever I suggest in these essays, for want of space or of humility, that one or another decision seems to me "plainly right" or "plainly wrong," or that some proposal or position is "clearly" consistent (or inconsistent) with the constitution, I hope my words will be understood as shorthand not for a conclusion I offer as indisputably "correct" but solely for a conviction I put forward as powerfully held.

But to substitute truth for convictions "powerfully held" is to say nothing about the convictions themselves.  Joseph Stalin surely held convictions "powerfully held" on the importance of the Gulags and secret police to keep the USSR under lock and key.  Tribe also does not seem to notice that his definition of "clear" is based on a prior acceptance of the idea of some of kind of permanence, because without that, he could not offer any definitions in the first place.   

The Eviction of Occupy Wall Street

Mayor Michael Bloomberg, finally having enough of the Occupy Wall Street protestors creating health hazards in his city and unlawfully occupying public land, ordered Zuccotti Park to be taken back by the NYC Police.  The New York Post has more to the story here:

An administration source insisted that Bloomberg gave the go-ahead to roust the protesters because of “an accumulation of things” — including concerns that the park became a firetrap and that protesters were planning to build wooden structures to prepare for winter.

But sources familiar with Bloomberg’s decision said he also was concerned with public health.

Scabies and lice recently cropped up among those sleeping in Zuccotti Park — and there were concerns that the infestations would grow even worse, said a law-enforcement source.

There also was an increasing numbers of lung ailments caused by constant smoking and the chilly nighttime temperatures, medics who worked on the scene confirmed.

This is good that Mayor Bloomberg finally thought it wise to take back his city.  The lawlessness and crime taking place at OWS camps throughout the United States has been well documented (see the OWS rap sheet here).  The public has started seeing the vices of OWS on display with more regularity and have started to change their opinions on the occupiers.  I am just so glad that our strong-willed political officers are now starting to catch on. 

This kind of mob rule is not what the Founders envisioned when they created the Constitution and set it on the foundation of "the Law of Nature and of Nature's God."

Kagan Should Recuse Herself in Obamacare Case

Emails have been unearthed between then-U.S. Solicitor General Elena Kagan and Laurence Tribe, Professor of Law at Harvard, that show Kagan's seeming approval of the passage of the Patient Care and Affordable Care Act (otherwise known as Obamacare).  Kagan tells Tribe “I hear they have the votes, Larry!! Simply amazing.”  During Kagan's time as Solicitor General, she was heavily involved in promoting the passage of Obamacare.  Carrie Severino of the Judicial Crisis Network makes a strong case why Justice Kagan should recuse herself in the upcoming case on the constitutionality of Obamacare.

Schmucks

Frank Miller, a famous comic book artist and writer, has a great rant on his website today on Occupy Wall Street.  Here is a sample:

The “Occupy” movement, whether displaying itself on Wall Street or in the streets of Oakland (which has, with unspeakable cowardice, embraced it) is anything but an exercise of our blessed First Amendment. “Occupy” is nothing but a pack of louts, thieves, and rapists, an unruly mob, fed by Woodstock-era nostalgia and putrid false righteousness. These clowns can do nothing but harm America. 

Miller joins the growing chorus of former leftists and closet conservatives who, more and more, have begun to openly deride many shibboleths of the Left.  Earlier this year, playwright and former leftist David Mamet published a book on his turn towards conservatism.  There is no doubt that this is very good for conservatism. 

On the Right to Riot

Although I have not yet said anything about the scandal that rocked Penn State this past week, I want to highlight something related to it:  the student reaction to the firing of Joe Paterno, who was in his 46th year as head coach.  In his Friday column, Jonah Goldberg notes that students blamed their rioting on the decision of the school trustees who, hours before, had fired the head coach because of his inaction on learning about the heinous crimes of former defensive coordinator Jerry Sandusky.  Here is Goldberg:

Imbued with a sense of victimhood, entitlement, and cultivated grievance that can only be taught, their preferred response to inconvenience is a temper tantrum. Sometimes, as with the Penn State riots, they are physical. Other times, they are intellectual or theatrical. But the tantrums are always self-justifying. Arguments are correct not if they conform to facts and reason, but if they are passionately held. Unfairness is measured by the intensity of one’s feelings.

Perhaps that’s why a “right to riot” has become a staple of campus culture across the country, particularly at big schools. Students riot when administrators take away their beer. They riot when they lose games. They riot when they win games. They riot when the cops try to break up parties. Inconvenience itself has become outrageous.

This is a very lucid and thoughtful critique of modern society.  This supposed right to riot is just as absurd as saying that one has a right to a temper tantrum or a right to slavery, an act contrary to the very principles which underlie this republic.  James Wilson taught in his Lecture on Law that "selfishness and injury are as little countenanced by the law of nature as by the law of man. Positive penalties, indeed, may, by human laws, be annexed to both. But these penalties are a restraint only upon injustice and overweening self-love, not upon the exercise of natural liberty."

Goldberg also points out that today, passion rules reason completely.  Things once held to be self-evident truths can now only be judged as good based on how passionately one holds to that belief, notwithstanding the belief itself.  The exclusive focus on rights totally eliminates any sense of duty to anyone else. 

At bottom, this is relativism and nihilism which, on most college campuses, is only reinforced by the professors who teach these same students.

The Real Cause of the Financial Crisis

Unbeknownst to the Occupy Wall Street crowd, those evil corporatists who work on Wall Street were not the main cause of the housing collapse that precipitated the economic downturn in 2008:  it was the federal government.  Conn Carroll at the Washington Examiner explains:

This we do know: Thanks to the widespread belief that the federal government would bail them out, Fannie and Freddie were able to borrow money at below-market interest rates.

This gave them a significant competitive advantage over private-sector firms which, by 1992, the two government-backed corporate entities had turned into an almost 70 percent share in the mortgage securitization market.

That same year, at the direction of the Congress, the Department of Housing and Urban Development began setting "affordable" mortgage goals for the agencies.

Countrywide was a growing force in the mortgage industry when it partnered with Fannie in 1992. But after [Countrywide Financial President Angelo] Mozilo's firm secured a steady government buyer for their loans, business exploded. Revenues went from $92 million in 1992, to $860 million in 1996, to $2 billion in 2000. By 2004, they were the nation's largest mortgage lender.

The secret to Countrywide's success was no mystery: They shredded standard industry lending practices, giving home loans to virtually anybody who asked. Fannie Mae not only knew this, Fannie rewarded it.

In 2000, the Fannie Mae Foundation honored Countrywide for "Outstanding Achievement" in the industry. The foundation's 2000 annual report noted: "When necessary -- in cases where applicants have no established credit history, for example -- Countrywide uses nontraditional credit, a practice now accepted by [Fannie]."

Countrywide continued to be the biggest supplier of loans to Fannie Mae all the way through the height of the housing boom. In 2004, 26 percent of the loans Fannie bought were from Countrywide. In 2007, that number had risen to 28 percent.

In his 1993 Nobel Prize lecture, economist Douglass North said, "If the institutional framework rewards piracy, then piratical organizations will come into existence; and if the institutional framework rewards productive activities then organizations -- firms -- will come into existence to engage in productive activities."

From 1992 through the height of the housing bubble, Fannie Mae and Freddie Mac used their monopoly position in the mortgage securitization industry to reward firms like Countrywide for making bad bets in the housing market. Countrywide's success was a signal to other market participants to lower their standards as well.

Wall Street banks are not blameless for the financial crisis. But they were only responding to the incentives set up by the federal government. Ignoring this history will help no one.

Due to the efforts of Rep. Barney Frank, then-Senator Chris Dodd, and other Democrats, Fannie and Freddie were able to keep their scheme going without any awareness of the consequences that would be just around the corner.

Occupy Wall Street: Fact and Fiction

Justin Paulette, a blogger at No Left Turns and an alumnus of Ashland University, has a great column on the facts and fictions of the Occupy Wall Street movement.  Here are some excerpts:

Global Span. Claims that OWS has spread to countries around the world — that is, Europe — fail to recall that circuses of this sort have been common in Europe for years. The OWS brand of demonstrator belongs to a quasi-professional cadre of anti-everything crusaders who follow protests like a Grateful Dead tour. Euro-protesters launch copy-cat OWS rallies because that’s what they do — they follow protests, not issues. Euro-protests have now reached America, not vice versa.

And:

Direct Democracy. Commentators report that OWS presents an alternative to established republican government and reacquaints Americans with a strain of direct democracy. This is true, but confuses virtue and vice. OWS looks like direct democracy because it is disorganized, leaderless, inefficient, susceptible to demagoguery, overly influenced by passions and incapable of articulating a coherent philosophy or forming a consistent governing policy. These are precisely the reasons the Founding Fathers prudently rejected direct democracy in favor of representative government.

You should definitely take some time and read the whole thing.