The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Thursday, June 30, 2005
 
Interesting thoughts on the modern Left being in a state of arrested adolescence.

I've had that idea more than once.
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Wednesday, June 29, 2005
 
Jonah Goldberg likes his constitutions dead, not "living."

I agree with his argument. But I wouldn't phrase it that way, because it cedes to liberals the proper meaning of the concept of a "living Constitution." The liberal use of that phrase was nicely articulated by Al Gore: "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."

In other words, the Constitution means whatever a majority of judges thinks it ought to mean.

Contrast that with Antonin Scalia: “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that — thumbs up or thumbs down — as their personal preferences dictate.”

I hold, along with the authors of the Declaration of Independence (and their intellectual predecessors going back to John Locke, etc.) that governments derive their just powers from the consent of the governed. Accordingly, in order to have legitimacy, any action by government official -- whether by a president, legislator, bureaucrat, or judge -- must be based on an expression of the people's consent to be governed in that manner.

The federal courts derive their power to issue decisions from their authority to decide questions arising under the Constitution and its amendments. The Constitution and its amendments, in turn, derive their legitimacy from the fact that at various points in history, the representatives of the people consented to be governed by them.

It follows that, in order to maintain their legitimacy, the federal courts must interpret the Constitution consistent with the original meaning of its text. That is what its framers consented to -- nothing more or less. When a federal judge takes a Constitutional text and declares that while the original meaning may have been X, the modern American consensus is that it ought to mean Y -- and rules as if the text actually did say Y -- he's taking an action that has no foundation in any expression of popular consent, and it lacks democratic legitimacy.

If the consensus of the American people, informed by their "constantly evolving experience" does indeed hold that the Constitution ought to say Y instead of X, the Constitution provides a mechanism for the people to enact that consensus into law. That is how the Constitution is a "living" document, and it seems to me that it is no less "living" in this sense than it would be if judges were able to manipulate it according to the conventional wisdom of the law schools. Ordinary people are "living" just as much as lawyers; some might even say more so. ("You call this living?!" I thought to myself the other night at 12:30 a.m., trying to finish a project.)

The Constitution lives by being carried forward by common consent from generation to generation, being amended -- again, by popular consent -- as needed to update it as the principles of the American people evolve. Ultimately, the heart and soul of the Constitution is the principle of consensual government it was designed to implement. Ironically, the judicial imperialism liberals are talking about when they speak of a "living Constitution" kills that very soul , by breaking the link between the application of Constitutional principles to present facts and the democratic expressions of consent that gave those principles their legitimacy.
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Tuesday, June 28, 2005
 
Someone has proposed seizing Justice Souter's New Hampshire house to make way for a "Lost Liberty Hotel." Complete with the "Just Desserts" cafe. [Via Drudge.]

Classic. More thoughts on the Kelo decision later, I hope.
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Monday, June 27, 2005
 
Again, I'm behind the curve.

I sent this to Senator Harry Reid the other day, on the subject of his weeping and wailing and gnashing his teeth over the fact that Karl Rove remarked, while discussing the moveon.org/Michael Moore-style Left, that a certain species of liberal was less disposed to an aggressive response to terrorism:

"I understand you are upset at remarks by Karl Rove suggesting that "liberals",after the attacks of September 11, 2001, tended to favor less aggressivemeasures in response than conservatives.

As a broad generalization, I don't see how anyone could argue with that. I remember the liberal partners and staff of my former law firm being very much opposed to a military response to those attacks. On the other hand, not a single conservative of my acquaintance wanted anything other than the full Sherman-through-Georgia treatment not only for the terrorists proper, but for anyone who gave them an ounce of aid and comfort. Obviously, not all liberals, and certainly not all Democrats -- not all of whom are liberals, even now -- were of the Phil Donohue "let's reach out" mindset. If you weren't -- don't worry. Karl wasn't talking about you.

I do find it a little hard to take that you should demand Rove's resignation sosoon after you tried to spin the furor over Senator Durbin's outrageouscomparison of military interrogations at Guantanamo Bay to Nazis, the Communistgulag, and Pol Pot as some kind of right-wing conspiracy. I find it disturbing that the Democrats' leader in the Senate can't see his way clear to give Mr.Durbin the Trent Lotting he deserves, even after his weaseling apology. (If Itried his apologizing style on my wife -- "Words can be misused ... IF you took offense" -- I'd be sleeping on the couch for a week.)

Propagandizing for the enemy is, apparently, something to ignore -- but making acommonplace general observation about genuine differences between the degrees to which liberals and conservatives favor the use of military force is grounds for firing someone. I expect partisan leaders to be partisan; that's your job. Itjust bores me when they're quite as obvious about it as you have been, and when their selective outrage is as forced as yours. Get rid of Dick Durbin, Howard Dean -- and for that matter, yourself, for calling President Bush a liar without backing it up as a gentleman would -- and then perhaps we'll talk about raising the tone of civility in Washington. I'll be donating to your opponent in the next election."
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Friday, June 24, 2005
 
Housing bubble spreads like a virus

Since house prices in my immediate neighborhood have in some cases increased fourfold in 8 years (from $175,000 to $675,000), I have no problem at all announcing the existence of a real estate bubble. The fundamentals of the economy have not altered so drastically in less than a decade to justify a quadrupling of the price of an existing asset category. All booms bust, and all deviations revert to the mean. Eventually, that is. And "eventually" can unfortunately be a long time.

One effect of house-price inflation is that people who suddenly find themselves with tons of equity in their property from runups in large metro areas are fanning out into previously un-bubble-touched markets looking for "investment" opportunities, marveling at low house prices in say, Phoenix, Salt Lake City, or Visalia (low, that is, compared to Los Angeles, San Diego, or the Bay Area) and bid up prices in those places far beyond what the local economies enable actual residents to pay.

This bubble, spreading from big rich cities into the hardscrabble hinterlands, is causing people real pain by turning a basic consumption commodity into an investment vehicle.
I am an economic conservative, but what I see just screams for government intervention. Government helped create this problem, by facilitating cheap credit. Money creation is a tool that government should have in its box to mitigate panics and recessions, but as has been pointed out on this blog, the Federal Reserve's classic methods of injecting liquidity don't target it well. Instead of being used for productivity-increasing capital formation, the increased liquidity is being used to inflate the housing market, allowing people who had the resources to get in on the game in the beginning to speculate and get rich, while people who just want to purchase a house for its traditional shelter use are forced to pay increased prices and undertake levels of risk inappropriate for their preferences.

The government ought to recognize that housing speculation is bad for the economy and bad for people in general, and take steps to prevent all the liquidity it must occasionally create in response to economic crises from slopping into unhelpful speculative uses. One possible response might be to end any kind of preferential tax treatment for owning more than one home; another might be to tax capital gains from the sale of existing residential property (other than a primary residence) as ordinary income. The whole point of preferential tax treatment of capital gains is to encourage investment, after all, but I can't for the life of me see why the government would want to encourage "investment" in house flipping.
These measures would not constitute activist government -- they would actually reduce government manipulation of the economy, by removing subsidies of harmful economic activity.
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Supreme Court "medical marijuana" decision about politics, not pot.

Not only do I blog way too sporadically, I'm way behind the news curve. But I have been meaning to comment on the Supreme Court's decision in Gonzales v. Raich, upholding the federal government's power to regulate the intrastate use of "medical marijuana" pursuant to the Constitution's commerce clause.

People tend to perceive Supreme Court decisions politically, judging them in light of the result they produce. (They may be excused in this, because since at least the 1960s, the Court's jurisprudence has in fact become more results-directed, seeming at times to begin with the policy result in mind and twisting and turning to draw some connection between the Constitution and the result, as in the infamous "penumbras and emanations" invented to discover a "right to privacy" that does not actually appear in the Constitution's text.) So naturally, Gonzales v. Raich is being interpreted by the general public as an expression of the Court's hostility to marijuana generally.

Ultimately, though, Gonzales v. Raich was not a decision about marijuana. Justices Rehnquist, O'Connor, and Thomas -- three of the most conservative members of the Supreme Court -- dissented from the Raich majority because, as Justice Thomas eloquently put it, if a California resident growing medical marijuana for her own use in her backyard is considered subject to regulation as "interstate commerce," everything is, and the Constitution's federalist system of separation of powers between state and federal government goes up in smoke. [No pun intended.]

The liberal bloc on the Court, on the other hand, is determined to nip in the bud [OK, fine -- pun intended] any idea that federal government's Constitutional power to "regulate interstate commerce" doesn't mean it can regulate anything it wants. The principle of federalism, to them, has uneasy associations with "state's rights," which they in turn associate with John C. Calhoun, Jim Crow, and worse. After all (goes their thinking), Texas and Utah are states, and if we don't keep them on a short leash, heaven only knows what unenlightened redstatery they'll try to pull.

To preserve the federal government's dominance of the states in every sphere, and to keep the Constitution's pesky federalist principles hidden under the rug, liberal jurists have no problem at all throwing a few sick people under the train. Power trumps compassion every time.

That said, I've always been suspicious of the argument for "medical marijuana." The evidence that smoking marijuana as a palliative for pain, glaucoma, chemotherapy-induced nausea, and so forth is more effective than other, legal drugs appears to be anecdotal at best. I often suspect the push to legalize "medical marijuana" is more of a disguised effort to destigmatize marijuana generally, dressing the cause up with a few sympathetic sick people. If that is the case, I'm not impressed. It strikes me as similar to potheads extolling the manifold industrial uses of hemp. Uh-huh -- right. It's all about ropemaking. Deceptive argumentation bores me.
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