Thank you Stacy. I made the correction above. My apologies to Smitty.

You are making we wonder whether or not that unusual behavior includes repetitive chants of "race to the bottom...race to the bottom..."

;)

But I associate myself with Mr.(?) Akimoto’s argument that rights, even so-called “fundamental” rights, are certainly politically contingent. They are determined, and more protected or less so, depending on the politics extant in a society at a given time.

In theory, this is not true. In practice, it is unfortuneately true.

To suggest that Jim Crow laws were somehow unconstitutional when Brown was decided but not when Plessy v Ferguson was decided makes absolutely no sense to me given my knowledge of due process. That said, in certain environments, democratic majorities can get away with violating the rights of individuals simply on the basis that it is a democratic majority and if the law in question is not too far off the political mainstream (i.e. same sex marriage bans), then, in many cases, judges will simply defer to the majority.

I don't know if that calls into account the nature of rights as much as it calls into account the shortcomings of our political processes, especially when our checks and balances do not check and balance the way they should.

I don’t see how an account of rights that doesn’t address itself to the economic and social circumstances around the individual can be sufficient – but I guess that’s why I’m not a libertarian or a conservative.

If I recall, both Mark and E.D. have argued that social safety nets are a valid use of state power. I believe that as well and I think that there are genuine public interests in providing certain basic services to those who need them. I don't see why holding this position would violate anyone's libertarian sensibilities except for those leaning towards minarchism or anarcho-capitalism, at least how I understand the police power of the states.

Nihilist

More or less. Add in some personal history and a heap of hypocrisy and you got yourself a deal!!!

Excused. Good luck.

The pension fund systems are in a world of hurt right now. The declines in their portfolio values are substantial with certain asset classes being hit harder than others. I know the California public pension funds through their alternative investments divisions have some sizable positions in investments that have probably (at least for now) lost most of their value.

Sitting from my perch in commercial real estate, what has happened is that pension funds, either due to market uncertainty or due to the denominator effect (i.e. changes in portfolio value making the fund overallocated in a certain asset class), are not putting out any money right now, even on pre-existing committments (they can easily do this to fund managers simply by "suggesting" that a capital call now means they will no longer invest in future funds).

From my perspective, pension funds are already out of the market and it sucks.

Mike Farmer,

Commercial real estate has been crumbling for at least 18 months now, it just may not be visible to those who don't follow it on a daily basis.

I should be on that list. After all, I did read Men in Black cover to cover.

Rortybomb,

I think your analysis of the difference between the underlying business models that drove CRA lending (which to me, was not much different than traditional balance sheet lending where interest income and principal repayment matter) and the mortgage brokerage/nonbank lender business (fee driven) is perhaps one of the most insightful ways of looking at this issue that I have seen.

In this light, it's not a "lead a horse to water" argument as much as it the rest of the horses went to a different lake.

Subprime lenders knew what they were doing and so long as they were able to sell off the loans and not have them default within the window that the loans could be put back to them (a typical feature when selling the loans to Wall Street), they were in the clear. They were also getting more and more aggressive as time went on, due largely in part to huge demand for the underlying securities. Originate at all costs was the order of the day.

It was the pace of the collapse that nailed them. Not only were house prices dropping, but the pace of defaults spiked and many new homeowners were defaulting within the first 90 days of the loans. The buyers of these loans demanded that the originators buy them back, and the loan originators lacked the capital to do so. As they started taking losses, the Street started pulling their lines of credit. Without capital, these companies shut down. At least that's the version of events as I understand them.

This does not end with him. Family members, business associates and others will likely be indicted but my guess is that no one wants to jump the gun until there's enough evidence to gauge the true extent of the involvement of any co-conspirators.

This is far from over.

Nihilists.

Hilzoy is a saint. I would never waste time trying to figure out what idiots like that think, but that's probably because I have little interest in getting inside the head of and empathizing with an idiot.

Then again, I may have an abnormally low level of patience when dealing with people like him.

Matoko,

Brown and Loving were not rejections of federalism but rather rejections of illegitimate acts of state governments under the 14th Amendment. Remember, nothing in the Tenth Amendment (a nice summary of what federalism is supposed to be) supports the so-called "states rights" (an obnoxious term as it is) position. There are some issues that are simply beyond the reach of simple democratic majorities. Bork's claim that majorities have the "right" to rule simply because they are majorities is nonsense. Not only does the 14th Amendment foreclose that possiblity, but one can examine state court cases from the 19th century prior to the 14th Amendment and see state courts reject this notion.

Federalism addresses only those powers that are legitimate. If you're looking for the SCOTUS rejecting federalism, start with Gonzales v Carhart.

One can read Stephen Breyer's Active Liberty and understand why left-leaning jurists don't like federalism. It has less to do with "localized mob rule" and more to do with avoiding the proverbial "race to the bottom" (see Hammer v Dagenhart).

The irony about Gonzales v Raich was that Scalia was in the majority. Why conservatives hold him in high regard I'll never know.

All this talk about constitutional law, abortion, and democracy and not a single word about Gonzales v Carhart.

The funny thing is that if in a hypothetical scenario Roe was overturned and a conservative Congress tried to pass a federal right-to-life act, I bet I know who'd vote against it. You mentioned him above. :)

I'm sorry greginak, where did I say that background checks were violative of the Second Amendment? In fact, where I have ever said that constitutional rights are not subject to certain forms of regulation?

You will not find me advocating for the absolutism of rights and suggest that our rights are not beyond reasonable regulation. What you will likely find is disagreement between us as to what constitutes a reasonable regulation.

Whether I am having this discussion with conservatives on same-sex marriage or with liberals on property or contract rights, it comes down to the same basic principle: reasonable regulations on the exercise of liberty have to serve a valid public purpose (public health, public safety, general welfare, etc.). You still reach the same result in the Griswold-Roe-Lawrence line of cases.

I don't believe in a "right to privacy". I believe in a broader right to liberty which respects the right of the individual and believes states need a damn good reason to regulate those liberties. We get to the same place but I would argue my view is more expansive than yours.

No comment.

Jaybird,

I think the court certainly reached the right decision in Griswold but the penumbras language is just plain awful. It is not a presumption of liberty but rather an attempt to explain privacy interests as part of the enumerated rights of the Bill of Rights. Justice Goldberg's concurring opinion citing the Ninth Amendment was closer to the money.

Had the Court relied on Meyer and Pierce (as opposed to attempting to characterize them as First Amendment cases), it would have been a simple 14th Amendment Due Process case and the SCOTUS would have simply suggested that the law exceeded the state's power. Unfortuneately, the Court did away with that by the late 1930's when the Progressives achieved a majority on the Court and transformed constitutional doctrine into what it is today.

I should probably commend Justice Black because at lease his dissent was consistent with the Footnote Four doctrine the Progressives themselves developed and then conveniently abandoned (they were right to do so both here and Roe but I'd rather see a more expansive and consistent application).

What heart?

In fact living in a democracy will always result in people who don’t like what is being done. That doesn’t mean it is unfair/wrong/unconstitutional which gets back to freddie’s comments up thread. The thing we have to separate among things we don’t like is, what is unlawful/unconstitutional and things we just don’t like.

There has not been a single liberal I have ever come across that can come up with an articulate, cogent and intellectually consistent way of doing this, and I don't expect to see that change. Conservatives, to their credit, can. They simply (and wrongly) assume that we should hold a higher standard to those rights enumerated in the Constitution as well as those "deep rooted in our nation's history and tradition" and throw the rest to democratic process. Funny enough, that used to be the liberal way prior to the Griswold case and Douglas' moronic penumbras and emanations.

Can't say the same for my friends on the Left. If they're not bearing their fangs the second someone suggests that abortion isn't constitutionally protected, they are tripping themselves over the basic language of the 2nd Amendment. In between those flights of fancy, they talk about this grand right to privacy yet mysteriously limit that to intimate associations between individuals and ignore long standing common law rights or basic associational rights (see Boy Scouts v Dale).

Do you think you're up for the challenge?

I think I like Mike's idea better than mine.

No worries E.D.

Jaybird goes in that direction:

As time goes on, it gets more and more difficult for me to tell the difference between moral busybodies who want to protect me from views that they themselves find abhorrent.

Richard Epstein concurs:

http://www.cato.org/pub_display.php?pub_id=2737

My fear is that the American left chiefly understands liberty by carving out some preferred class of "intimate" associations of two (but in an unexplained burst of traditionalism, most definitely not more) individuals. After all, even on associational freedoms, the American left has become far more statist in rejecting freedom of association claims in the Boy Scout and campaign finance cases. Its support for gay marriage, therefore, looks opportunistic because it refuses to apply the same standard of free association to economic legislation for fear of what it will do to unions and their fiefdoms.

In its own way, the moral left is as authoritarian as the moral right. Judged against the left's own fractured standard, the conservative criticisms of judicial activism hit the mark. But the conservatives' plea for democratic federalism in defense of traditional values, and then for a constitutional amendment, is wholly misguided. Restore individual liberty to center stage, and this state restriction on same-sex marriages falls to the ground with the same speed as the full panoply of employment regulations, and the extension of antidiscrimination laws into ordinary social and religious affairs.

E.D.,

I’m sorry, but society is by definition the grouping of many individuals who simply have to make rules and follow obligations so as to live peaceably with one another.

The fact that we all have to live with one another does absolutely nothing to explain why certain sorts of regulations involving consensual private activity deemed immoral by some is subject to regulation and other consensual private activity deemed immoral by some is not. I use the term "New Deal Originalism" for a reason ya know ;)

From my constitutional standpoint, the Left's view on the liberty and the Constitution is at best schizophrenic and at worst wildly inconsistent, but you'd expect that when there are no textual guidelines that need to be followed.

I think greginak should answer the questions. I'd love to know.

Jaybird's not being evasive. He and I both know the problem and your mocking libertarians simply shows your inability to see the forest through the trees and perhaps consider the possibility that a large expansive government may be a big part of the problem.

I'm not really sure but I think you can at least get a sense of the power from the comparable bench testing that gets done on sites like Anandtech, Tom's Hardware of perhaps a few I don't know of. In the absence of an explanation from a techie, that could help.

I'm the same way about computers. I've never built the system myself but I've picked out the components and will never buy a pre-made. You save at least $1,000 with higher end parts.

Mark,

Moreso, I thought the situation with firms like Blackwater in Iraq was that there was no legal body that had jurisdiction over them, at least initially perhaps due to the contract with the U.S. government.

I'd have to look that up, but I remember Marty Lederman making that point over at Balkinization some time ago.