Friday, December 16, 2011

Newt is Right: Throw the Bums Out

Newt has brought up an issue inviting the expected attacks from the left, but surprisingly these attacks have been supported by several prominent conservatives. Newt has given voice to the idea that the legislative branch of government should fight back against activist judges. Whether his recommended procedures to do this are the right ones might be questioned, but the idea of fighting is refreshing and much needed if we are to reset the direction of this ship of state.

Michael Mukasey and Alberto Gonzales, each a former Republican Attorney General of the United States, and former Judge Andrew Napolitano, a strict constitutionalist and contributor to Fox News, have called Newts ideas unprecedented, crazy, radical, and warned that his plan would violate the separation of powers in the government. They couldn't be more wrong. First they should read some history. There is nothing new about complaints of overreach and attempts to remedy it by other branches of government. In recent decades the separation of powers have been breached in a broad organized way by the very judges these men want to protect, and Newt's ideas would only help reestablish proper boundaries.

The legislative, executive and judicial branches are theoretically coequal branches of government. Although equality in the real world is an impossibility (Jefferson thought the judicial branch would be the weakest of the three) it is important that to the extent possible, they be kept separate branches of government. The legislative branch creates and passes laws, the executive branch executes them, and the judicial branch mediates disputes and insures that the laws passed and the methods of executing them do not run afoul of the constitution.

That last part, the job of the judiciary, is the key to understanding this. Starting with Woodrow Wilson, and expanded by Franklin Roosevelt (both repeatedly expressed disdain for the constitution because it got in the way of their "enlightened" agenda), a theory developed reasoning that since the framers of the constitution could never have anticipated changes that have occurred in today's society, it is the duty of judges to interpret the constitution in a manner different than the original intent, and more in a manner consistent with modernity. At first blush this seems reasonable. But on closer examination its fails any test of reasonableness. I would argue that this very idea, this philosophy, is a violation of the constitution itself, and therefore disqualifies anyone adopting it from holding judicial office.

The fallacy in the living constitution theory is that although society has changed in ways the framers could never have anticipated, it is irrelevant. The inherent assumption that the framers were thinking about society is incorrect. They were dealing with human nature, and as much as society has changed, I would argue human nature has not, not in 200 years, not in 2000 years.

Think about the effect of a living constitution as liberals advocate. Without fixed laws and fixed principles a court could interpret anything in any way. No one would know in advance whether what he was doing was lawful or not. There is always going to be problems with cases that fall on the line of a law or legal principle, ones that can be reasonably argued from both sides. These things are uncomfortable, but they occur. We can only deal with them in as fair a way as possible.

But under the banner of a living constitution, there are no limits to what a judge might rule. See Roe vs Wade for details. No matter what you beliefs on abortion are, the legal reasoning, and I use reasoning advisedly, is totally arbitrary and irrational. The majority ruled the federal government had the right to make a judgment on an issue not enumerated among the powers of the federal government. The court then used a non existent right to privacy (arguably implied in the constitution but not stated), and contorted that into a woman's right to abort a fetus. Even legal scholars who are pro choice admit this was an incoherent ruling.

When rulings like that are made, what has happened? The judiciary has usurped the responsibility and power of the legislature. State legislatures have the right to decide whether abortion is legal (most people agree the state has a legitimate interest in murder, so the abortion debate revolves around if abortion is murder.) A judge has no such right, and to the extent he believes he does (as it appears most living constitution advocates do), then he is acting beyond his charge. The other branches should fight back. If the president declared that taxes would go up by 20%, something only congress has the authority to do, shouldn't congress fight him with everything they have? If a president were permitted to do this we would have a dictatorship. Allowing judges to interpret the constitution without regard to intent is equally dangerous, except this results in an oligarchy instead of a dictatorship.

Our success as a nation, our very freedom, is because we are a nation of laws, not men. The framers of the constitution realized their work might contain mistakes. Democracy was a new, noble experiment. Men ruled democratically might not behave in the way they anticipated. So they provided for changes, or amendments. If living constitution supporters thinks change is needed, they are free to try to bring enough people into agreement with them, and if they succeed, then, and only then, can they change the constitution. Letting a judge wander away from the original intent into wherever his ideology might lead him, making wholesale, random changes, is illegal and should be challenged and struck down by any and all supporters of the rule of law, whatever else their ideology. 

Monday, December 12, 2011

Why Newt? Life is a Series of Percentage Bets

Newt is ethically challenged for sure, temperamental and given to self grandiose flights of fancy, absolutely. But if you think about it, most presidents have had many similar failings. Kennedy was a philanderer. Johnson and Nixon were given to intense bouts of anger and bullying. Carter's was the most radical president in history before the present occupant of 1600 Pennsylvania Ave. His lies were pretty much the same as most presidents, but they stood out given his holier than thou attitude. Clinton may have been well liked, but his personal failings are well documented. Obama sat in Reverend Wright's pews listening to anti American, anti semitic racist garbage and tacitly supported it by virtue of his continuing presence and deafening silence. The terrorist Bill Ayers, radical Islamist sympathizers, Communists and socialists were all counted among his mentors and friends. Certainly he is a deeply flawed human being.

Whatever a presidents personal failures were, they all had one thing in common. They hid them. Democrats are routinely assisted in this effort by the press, while Republicans have to deal with exaggerations of their failings. Hiding them is more difficult.

Yes, both are flawed. Isn't that part of the human condition? Nobody should defend Newt on personal issues. His supporters should acknowledge them, and express hope that he has changed. Neither should they try to dismiss his shortcomings with the liberal whitewash of, everybody does it. Everyone does do it to some degree or another, but that doesn't make it right, or even more forgivable. What supporters should do is hope he does not defend them, but rather asks the public to search their soul and see if they can forgive him.

I have written about his changing positions and his scary ideas. But as Donald Rumsfeld said, we go to war with the weapons we have, not the ones we wish we had. A year ago I said this nomination was Jim DeMint's for the asking. Unfortunately, he either didn't hear or didn't care.

He would have been a better weapon, but that is irrelevant. The best weapon we have now is Newt. He has a track record. His auditory record leaves much to be desired, but the things he actually did are as good and as important as any politician since Ronald Reagan. He had a major role in taking the majority for the first time in over 40 years, in welfare reform, NAFTA, lowering of the capital gains tax, highlighting several issues like the unfairness of the inheritance tax, and many more. As a legislator he was faithful to both social and fiscal conservatives.

The non Newt, Romney, has a failed auditory record and although a few things he did as governor of Massachusetts were good, they were trivial when compared with Newt's accomplishments. Add to that his signature effort as governor, health care, something he continues to defend even though it is a total abomination, and the choice becomes clear. Even his tax plan shows an ignorance of the economy (raising taxes on anyone earning over $200,000), or else he is pandering in spite of the fact that such a plan would be highly destructive.

Romney is a big government Republican. Newt may be one too, and many things he said in the past indicate he is, but the legislation he navigated through congress says otherwise. I can't be sure. I doubt anyone can. As the article title says, life is a series of percentage bets. We can only vote for the candidate most likely to put this great country back on course. That would be Newt.

Wednesday, December 7, 2011

Euro Crisis

 When you see that in order to produce, you need to obtain permission from men who produce nothing; when you see that money is flowing to those who deal not in goods, but in favors; when you see that men get rich more easily by graft than by work, and your laws no longer protect you against them, but protect them against may know that your society is doomed. - Ayn Rand

Two and a half years ago I told you that contrary to the Democrats exculpatory fantasy that predatory lending ((laughable) and greedy investment bankers were responsible for the financial crisis (they amounted to little more than a footnote so far as the real cause goes), Fannie Mae and Freddie Mac and their political overlords were the real culprits. Now we have a European sovereign debt problem, and the same forces that destroyed our banking are responsible here. For those of you who don't understand what the crisis in Europe is about and why it occurred I will give you a brief explanation.

The first reason is that countries simply spent and borrowed so much money that their debt grew to the point where it exceeded their ability to repay. Still, the first question is even if they defaulted on this debt, what would it be so catastrophic? Other countries defaulted (Argentina) and within a few years bounced back to become vibrant again. Why is Europe different?

Secondly, who is owed the money, and how did they allow these nations to go this far. Japan has a debt problem, and in their case they promoted lending to the government in such a way that most of the money came from domestic savings. That means the people were duped. The United States has a serious problem, but the dollar is a reserve currency (used in many international transactions) which allows a certain flexibility, and the economy is so large that countries doing business with the US (China) have a vested interest in keeping the dollar strong and keeping us solvent, which they have done by lending massive amounts of money to us. We too are on an unsustainable course, but the imminent economic tsunami is farther down the road than Europe.

Europe is in real trouble, and now. If they default on their debt they will bankrupt most of their banks. It is those banks who loaned the governments staggering amounts of the money (Ireland being the exception where the government foolishly kept insolvent banks afloat by borrowing money to "invest" in them.) Why? Didn't anyone recognize the risk the borrowers/ governments presented? Well, here is how one part of the scam worked. The governments passed laws dictating how much in reserves a bank must hold requiring different reserve amounts on different types of loans. Business loans needed a 6% reserve, mortgages needed 4%, and sovereign debt, well that required zero reserves. So for each dollar of depositor money a bank loaned to a business, it needed 6 cents of its own in equity, but a dollar loaned to Portugal, Greece or any European sovereign required nothing. Guess what happened. The banks loaned as much as they could to the various countries. Now, if the governments default, the banks will fail and the institutions and people who funded them will lose massive amounts of money, not to mention the failure of the banking infrastructure needed to conduct normal business transactions. It will be a colossal mess.

Imagine a world where the government simply adjudicated disputes, monitored businesses for truthfulness,  made sure they had the reserves they claimed, earned the amount of money they reported, and generally conducted business in a forthright manner. Depositors would be able to make their own choices. A bank with large reserves would be able to borrow cheaper than a less well endowed institution. If the public were allowed to make informed choices, it wouldn't eliminate bubbles and collapses, but there would be fewer and less severe ones. Instead we have a system controlled by bureaucrats and politicians, and it should come as no surprise that they manipulate things for their own personal gain without regard to the rest of us.