Judging the Judges

Wall Street Journal ^ | May 1, 2008 | AMITY SHLAES

[neverdem]

The Dirty Dozen By Robert A. Levy and William Mellor (Sentinel, 302 pages, $25.95)

Town fathers of Norway, take note. You have a new adversary in Ellen Anderson. Ms. Anderson is the Minnesota state senator who is pushing legislation to freeze foreclosures on homes with subprime mortgages in the name of "protecting the American dream." The economic chill from such a move – and from other attempts to protect "the American dream" from mortgage meltdown – would likely be felt around the world by pension plans, banks and municipalities that have invested in mortgage-backed securities. As it happens, a number of Norwegian towns are reeling from losses on investments that they didn't realize were vulnerable to Wall Street's recent subprime woes.

Minnesota's governor, Tim Pawlenty, is threatening to veto the bill that Ms. Anderson is pushing, officially called the Minnesota Subprime Foreclosure Deferment Act. But the smart money says that it is Ms. Anderson who will prevail. Those on the side of mortgage relief usually do. Those on the side of mortgage enforcement tend to lose out. Homeownership is compelling; the property rights of lenders are not. That, at any rate, appears to be the current American consensus.

"The Dirty Dozen" tells us how misguided Supreme Court decisions have helped us to arrive at that consensus and others. Robert A. Levy and William Mellor, both constitutional lawyers, examine 12 notorious court opinions affecting everything from wartime internments and medical-school admissions to tax policy and the rights of the homebuyers. The starting point for their survey is 1933, their reasonable assumption being that modern American law began with the New Deal. They went about compiling their list by asking other lawyers and scholars to name the cases they considered to be the most damaging to our constitutional rights.

Some of the...

[HankArcher]

“Those on the side of mortgage relief usually do. Those on the side of mortgage enforcement tend to lose out. Homeownership is compelling; the property rights of lenders are not. That, at any rate, appears to be the current American consensus.”

Comrades Chavez and Castro applaud.

[HankArcher]

“Those on the side of mortgage relief usually do. Those on the side of mortgage enforcement tend to lose out. Homeownership is compelling; the property rights of lenders are not. That, at any rate, appears to be the current American consensus.”

Comrades Chavez and Castro applaud.

[HankArcher]

Whoops. stuttered or something.

[traviskicks]

Libertarian ping! To be added or removed freepmail me or post a message here.

[kbennkc]

This should not do much to encourage lending in the state . This would seem to me to be an unconstitutional taking . If I can not pursue my statutory first remedy , foreclosure , I am sure they will also prohibit me from suing on the note . Suddenly my accounts receivable are not looking likely to be received .

[machenation]

Thank for a very good posting.
I think that when the court takes the imagined rights of the people away, there will be such a massive outcry that the congress will have to do their job and submit a constitutional amendment like they have been avoiding for decades.

[Nailbiter]

Read article, did not mention 1934 NFA as one of bad laws.
Although they did not cover all 12 of the dozen

[Jacquerie]

What is an NFA?

[Nailbiter]

National firearms act

[Gondring]

And the truly responsible get scr*wed again.

[justiceseeker93]

There are so many infamous SCOTUS rulings since 1933 that limiting the discussion to a mere dozen hardly does justice (no pun intended) to the subject of how the SCOTUS has been chopping away at constitutionally guaranteed liberty.

One that should be in every list is Wickard v. Filburn(1942), where the SCOTUS dismantled any limits to the scope of "interstate commerce" as used in the Constitution, thereby allowing the federal government to fine a farmer for using part of his crop to feed his family.