Brief Note

Scott Holleran's latest column talks about New Orleans and the upcoming Atlas Shrugged movie. Well worth checking out. As a great fan of the book, I can't help looking forward to the movie, even if it is quite likely that I will be disappointed. Nevertheless, it will be nice if the movie (or TV mini-series -- no decision on that has been made) is finally made and perhaps some further publicity for the book results.

Today's Briefing

My heart goes out to the people of New Orleans and surrounding areas suffering from the devastation wrought by hurricane Katrina. A list of links for aid donations can be found on Glenn Reynold's blog here. Also, blogger Gus Van Horn is asking his readers to donate to the Armed Forces Retirement Home, "whose facility in Gulfport, Mississippi took severe damage from the storm." I recommend donating through your employer if they have a matching funds program. That's what I intend to do.
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Like Don Watkins of Anger Management I'm in agreement with Peggy Noonan's views on looting:

There seems to be some confusion in terms of terminology on TV. People with no food and water who are walking into supermarkets and taking food and water off the shelves are not criminal, they are sane. They are not looters, they are people who are attempting to survive; they are taking the basics of survival off shelves in stores where there isn't even anyone at the cash register.

Looters are not looking to survive; they're looking to take advantage of the weakness of others. They are predators. They're taking not what they need but what they want. They are breaking into stores in New Orleans and elsewhere and stealing flat screen TVs and jewelry, guns and CD players. They are breaking into homes and taking what those who have fled trustingly left behind. In Biloxi, Miss., looters went from shop to shop. "People are just casually walking in and filling up garbage bags and walking off like they're Santa Claus," the owner of a Super 8 Motel told the London Times. On CNN, producer Kim Siegel reported in the middle of the afternoon from Canal Street in New Orleans that looters were taking "everything they can."

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George Will in his column today joins the view that Tara Smith has expressed previously that judicial activism is not such a bad thing. Mr. Will however is fairly mixed in quality. He begins by trying to convince Conservatives that "dogmatic majoritarianism" is not a good thing and sites historical examples from the Republican party's history to support this argument:

The conservatives' party, the Republican Party, was born in reaction against repeal of the Missouri Compromise -- against, that is, the right, established by Congress in 1854, of Kansans to own slaves if a Kansas majority approved of that. The first Republican president was propelled to greatness by his recoil against allowing popular sovereignty to decide whether slavery should expand into particular territories.

And he continues with this excellent paragraph:

Lincoln's greatness was inseparable from his belief that there are some things that majorities should not be permitted to do -- things that violate natural rights, the protection of which is the Constitution's principal purpose. As Chief Justice John Marshall said in Marbury v. Madison , the theoretical foundation of judicial review, "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written."

However, he following this he deteriorates by relying on Daniel Farber's and Suzanna Sherry's book Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, and claiming that "judicial review amounts to blocking a contemporary majority in the name of a past majority" but the founder amount to "an especially dignified majority" which is "owed special deference." True to his Conservatism, Will here shows a reverence for tradition. But the truth is that the Founders ought not to be revered because the reflected a majority at that time or because it was a special time but because, by and large, they were right. To the extent that they were wrong, their errors need to be corrected. Will concludes:

Even when the Supreme Court was most athwart public opinion -- striking down New Deal legislation -- voters sharply rebuked President Franklin Roosevelt for his plan to "pack" the court by enlarging it. So this is another powerful argument for the compatibility of judicial review with America's democratic values: the demos -- the public -- supports it.

Apropos FDR & the Supreme Court. I remember a long time ago listening to an abridged version of Judge Robert Bork's The Tempting of America. In the book Bork completely justifies Franklin D. Roosevelt's machinations against the Supreme Court. At the time Roosevelt was trying to invent new powers of government that the Constitution never allowed and the Justices were ruling one law after another unconstitutional. If memory serves me right, Bork compared the Conservative "activism" of the judges in the 1930s to the Liberal "activism" of judges in the 1960s and 1970s and thought both were wrong. I couldn't disagree more. (my memory on this is faulty -- see the Update and Correction below)

Judicial activism in the protection of rights is precisely what a Supreme Court justice ought to do as the quote above from Will about Lincoln also supports. Tara Smith in her article outlines the necessary qualifications a Supreme Court judge ought to have:

The salient question in assessing any nominee, then, is not whether a judge takes action, but the factors that guide his actions. To be qualified to sit on the Supreme Court, a person must, at minimum, understand three basic facts: First, that individual rights are broad principles defining the individual's freedom of action. The familiar rights of life, liberty, property and the pursuit of happiness subsume a vast array of particular exercises of this freedom, some explicitly named in the constitution (e.g., the freedom of speech) and some not (the right to travel). Second, he must understand that the government's sole function is to protect individuals' freedom of action. As Jefferson explained, it is "to secure these rights, [that] governments are instituted among men." Third, he must recognize that our government properly acts exclusively by permission. Articles I, II and III specify the powers of the three branches of government and the 10th Amendment expressly decrees that powers not delegated to the federal government are reserved by the states or by the people. The government, in other words, may do only what it is legally authorized to do.

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Update and Correction 9/2/2005
It has been pointed out to me that Judge Robert Bork did not in fact consider the New Deal court an example of judicial activism in his book The Tempting of America. I stand corrected on that. I was nevertheless correct that Judge Bork objects to what he terms "Conservative Constitutional Revisionism" as much as to "Liberal Constitutional Revisionism" and he has criticised conservative/libertarian thinkers such as Richard Epstein and Bernard Siegan for arguing that the Constitution do more than it should (according to Judge Bork) for economic liberties. He sympathizes with their ends but does not think the Court ought to be the means.

Amazing

Perhaps I haven't read the Los Angeles Times in great detail lately but I was under the impression that its editorial page, which is now edited by liberal ex-Crossfire host Michael Kinsley, was, well, liberal. However much to my great surprise I found today's editorial on the airline industry a breath of pro-capitalist free-market air. Here are some relevant quote:

MORE THAN A QUARTER-CENTURY after the deregulation of the airline industry, the nation's most successful airline is inexcusably barred by the government from flying to Southern California from its home base.

Wait, it gets better:

[The restriction]costs California hundreds of millions of dollars in lost economic activity, according to the Los Angeles County Economic Development Corp., which is lobbying for its repeal. It also illustrates a larger problem: government intervention that is hobbling the nation's dairline industry, which is projected to lose $5 billion this year. [emphasis added]

Admittedly not a moral argument but better than I've come to expect from the usually regulation supportive LA Times. The editorial continues:

Although the industry would be far healthier if some money-losing carriers simply folded, the federal government is overly protective of failing airlines. The abuse of bankruptcy laws, for example, is becoming routine in the industry — United now has been flying under Chapter 11 protection for nearly three years — but the government allows failing airlines to continue in operation without needing to pay all their bills.

And finally this:

Outdated restrictions on foreign ownership of U.S. airlines are another impediment to needed consolidation, investment and innovation. Northwest is showing welcome signs of surviving a strike by its mechanics union, but there still is a need for Congress to consider changes to the Railway Labor Act that would make airlines less hostage to big labor.[emphasis aded]

A liberal newspaper supporting changes in government support for the unions. Simply amazing! Of course, if it were up to me, all those acts placing the power of government force behind union, would be abolished, since they constitute an initiation of force against employers. Still, it's great to see that at least some free market principles seem to be less controversial in some previously less than favorable quarters.