Thursday, May 29, 2008

Chief Justice Obama?

Not that anyone should ever take a politician at his word, but I found this statement rich in irony. From Senator Obama:

“I would call my attorney general in and review every single executive order issued by George Bush and overturn those laws or executive decisions that I feel violate the constitution,” said Obama.

New boss...same as the old boss?

Executive orders may be one thing, but last I checked, I do not recall learning that it is the role of the Executive Branch to overturn laws the President deems to be unconstitutional. I guess anything's possible this day and age.

And no disrespect to Obsidian Wings, but that is not a statement that should put a smile on anyone's face. It's a politician's pandering at its worst.

Another reason why I will never vote for the man.

For what it's worth, let's just say I have some disagreement's with the Bush Administration's constitutional positions. Rather than explain in detail, this paper by The Cato Institute should suffice.

Hat tip: Publius Endures

Wednesday, May 21, 2008

Question of the Day

Is the suggestion that one self-fornicate an appropriate response to this drivel? Maybe I should email Phillip Klein over at The American Spectator, only I don't like wasting time with idiots.

No doubt to the disappointment of some libertarians, all three candidates took a stand against kiddie porn.

Just asking.

Hat tip to The Agitator, whose comeback was rather enjoyable.

Tuesday, May 20, 2008

Now, it's time for my obligatory post on the judicial activism discussion...

Mark at Publius Endures has written a series of posts (here, here, and here) that not only defend the California Supreme Court decision but the proper role of the judiciary in light of the sort of criticisms of "judicial activism" and "legislating from the bench" that are as predictable as they are dull and devoid of any real meaning. While I would call all of these posts "must reads", the second post, which explains in plain English what the judiciary does, should be mandatory reading for those before they put a foot in mouth with hopelessly weak arguments about the tyranny of the judiciary. Seriously.

Marc Moore ("MM") at Poligazette responds to Mark's assertions here. The third link above is Mark's response to Marc. It is a civil and interesting exchange. I have some comments and disagreements with Marc Moore's commentary.

I would have said that the judiciary’s primary function was to defend the Constitution against increasing irrelevancy in the face of excessive expansions by the other two branches. To define and defend the fundamental laws and values of the nation...

and later...

Assuming that we accept Mark’s assertion that the judiciary’s prime directive is to defend the legislatively defenseless there is still a question about how much leeway judges should have - or use, to put it a different way - to redefine societal norms.

MM is concerned about the judicial discretion afforded to judges based on Mark's view of the judiciary in the context of "redefining" societal norms, yet does not acknowledge the same problems in his own definition. I also wonder why his view of the role of the judiciary excludes state actions, but there is little need to press that issue for now.

By citing "increasing irrelevancy", as opposed to a strict enforcement of constitutional boundaries, he is placing in the hands of judges the discretion to determine what is relevant, what is not relevant and how it should be defined when applied to actual cases and controversies. Since we are already dealing with an irrelevant document, the argument goes, let us just do our best to enforce the outer boundaries and give judges the responsibility to enforce it. Depending on whether the fundamental value is respecting the doctrine of enumerated powers or deferring to democratic process in each specific case brings about a different set of inconsistent results. No wonder that the appointment of Supreme Court justices is such a political affair!!

To MM second point about judges redefining "societal norms", that is not the realm of judges per se and when they go beyond their vested powers to do so, as it can be argued they did with the busing case he cites, it is more than a little problemmatic. Fair point.

However, to quote KipEsquire, commenting in Mark's latest post:

"Federalism" -- like "democracy" -- is only noble to the extent that it respects individual rights. To the extent that it is invoked to infringe rights, it is evil -- and utterly subject to and deserving of negation by courts.

Setting aside the fact that "societal norms" becomes a "defined by who and by what standard?" problem that screams "Kip's Law" (the definition and numerous examples here), when "societal norms" are enforced into legal prohibitions restricting activities involving consenting individuals and violating the rights of no one, it is an arbitrary, irrational and illegitimate action on behalf of a democratic majority which saw fit to violate the rights of individuals under the rubric of "common good", "social order" or a "right to self govern". In these instances, it is absolutely the role of judges, when a case or controversy arises, to strike down these laws. If the question is individual liberty on one hand and striking down a "societal norm" that violates the rights of other individuals despite its status as a traditional practice, liberty should prevail. Always.

The Supreme Court, in overturning the same-sex sodomy law in Lawrence v Texas, did not recognize a "right to same-sex sodomy" as conservatives may have us believe, nor did it attempt to "redefine a social norm". Rather, the Court recognized, correctly, that there are clear limits on the ability of democratic majorities to put their personal preferences about how the rest of us should behave into law, especially when the law attempts to prohibit otherwise rightful conduct (rightful being not violating the rights of others). At times, reading conservative commentary on this case and others that provide a check on unbridled majoritarianism, I wonder whether conservatives confuse the concepts of "redefining social norms" and reminding the people that the "right to govern over others" has its limitations.

On the matter of judicial activism, MM believes that the California case is small potatoes by comparison in terms of "activism from the bench" but provides neither a defintion of activism (unless we look to his example of the busing case as guidance) or any support to the claim of rampant activism he believes exist.

In the context of a blawgosphere debate between Randy Barnett, Stephen Bainbridge and others approximately four years ago, Randy Barnett blogged on the subject of "judicial activism". The whole post is a fascinating read, but I will only cite this portion:

...what exactly IS judicial activism? Unfortunately, apart from his reference to "democratic values," Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:

-Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in his infamous confirmation testimony?

-Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in the Tempting of America?

-Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?

-Is it activism to construct a doctrine to define the wholly unenumerated "police power" of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?

-Surely Professor Bainbridge would not encourage conservatives to remain as uninformed of the meaning of all these crucial provisions as Robert Bork proved to be in the last book in which he opined on the Constitution. Or do they all just happen to have no discernable meaning, and no constitutional purpose, despite what they apparently say?

-Judicial "activism," as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error. Without a conception of "activism," we just do not know exactly why Professor Bainbridge is offended.

If MM wishes to elaborate on his theories of "judicial activism" and what he believes the proper role of the judiciary should be and defend the legitimacy of his theories (or his overall definition of legitimacy), he'll have to provide more detail. In Marc's defense, his focus seemed be on other points put forth by (the other) Mark regarding conservative disdain for the Constitution. I have little to say there, as the points Mark make are pretty much similar to my own.

Wednesday, May 14, 2008


Via Tim Lee, discussing school choice and voucher programs:

What we have, then, is a program that offers more choices to low-income parents, is extremely popular with those parents (the Milwaukee program has been repeatedly expanded to make room for rising demand), saves the state money (because the voucher is almost always for a significantly smaller amount than the average per-pupil cost of public schools), and seems to perform no worse than the more expensive public school option. In a rational world, a program that performs no worse than the program it replaced, is popular with its target audience, and saves taxpayers money would be regarded as a modest success that ought to be replicated elsewhere. Yet in the bizarro world of education policy, such the fact that voucher and public schools seem to perform similarly is taken as evidence that vouchers are fatally flawed and ought to be abandoned. It’s really odd.

I could not have said it better myself. I have noticed that when given a situation where you have on one hand a government-run program or law (i.e. minimum wage law) and choice on the other (school choice or freedom of contract) and little or negative net difference between the two as far as impact, even if freedom gets us to the same place at the end of the day, the burden is on us to explain why we should have the ability to choose and not have the government do it for us.

Bluntly put, Tim's comment exemplifies the Left's aversion to the freedom of choice. It isn't limited to education policy either.

Monday, May 12, 2008

So what happened?

Lots of things really.

Before I go on, I want to extend my gratitude to Donald Douglas at American Power, Gayle at the Dragon Lady's Den, Mark at Publius Endures, and Patrick at Driving Out the Snakes for their kind words of encouragement. It meant a lot. Thank you.

Things have turned out just fine, as I thought they would; however, I did not expect things to turn around as quickly as they did. Some background:

I work in the commercial real estate business on the capital markets side. I spent the last three years at one of the major Wall Street banks working in the capacity of advising on major institutional real estate transactions (I was more of a junior level person at that firm). I had a front row seat to the sorts of major transactions that were getting executed whether in the capacity of single asset sales ($1 billion plus transactions in New York City at very high per square foot prices), major securitizations of commercial real estate mortgages, bank loans, residential mortgages, etc. etc. and some of the largest mergers and acquisitions transactions that have ever taken place, driven largely in part by Wall Street's ability to finance these transactions which was driven in part by the demand for securitized paper. I learned more in those three years than I did in my first nine, by several multiples.

I also watched the whole thing hit the skids (I am hesitant to declare that the whole operation has fallen apart because there will always be markets for securitized fixed income products in my opinion (even with those markets in the shape they are in now, investors in that sector are looking to buy existing paper and take advantage of perceived dislocations in those markets). I was caught up in the layoffs. I had friends who got laid off and I have friends who are constantly worrying about whether or not they are going to be next. A significantly slower deal flow adds to the anxiety.

I really feel lucky. I was laid off on March 31. I was going to be alright for a while, as I received a rather generous severance package, but as luck would have it, on April 3, I received a job offer with another commercial real estate company. In hindsight, the second I walked out of the interview the Thursday before, the second I knew that I would receive an offer from the company, only I wasn't sure whether it would be a good one. I did accept the offer but because of my severance agreement, I was precluded from starting another job until May 1st. Basically, within 3 days of being laid off, I had accepted a job and got to take a month off of work. I can't complain about that, although it got old being off of work for so long.

I hope no one takes this as anecdotal evidence that things are good. I just happened to find a situation that matched my skillset to a "T" with a company that has a mandate to grow, selectively increase headcount and ride out this market downturn. The fact that I have a real estate-based skillset as opposed to a loan underwriting skillset allowed me to stand out against others whom I was competing with in a job market that is, at least in my end of the business, incredibly soft. While I am not going to paint a gloom-and-doom picture for anyone, there are a lot of things that concern me right now.

I've spent the last month more or less off the reservation. I haven't had time to blog. My days have been very busy and, as an avid gamer and flight simmer, I tend to spend my evenings in the skies engaging in combat in WWII-era fighter planes (and eagerly awaiting the release of the next generation combat flight sim that will recreate the Battle of Britain). I'll try to emerge from my slumber and increase my presence a bit, but for now, all is well and thanks again for the concern.

About that other thing, there's that old saying "if at first you don't succeed..."