A Tale of two Louisianas

Though it isn't really what I mean to write about, I feel like I need to start this with a defense of why so much of the right is correct to place blame on Obama for the cleanup of the BP oil spill. It is correct that BP, and not Obama, caused the spill. Last I checked only Al Gore believed Bush caused Katrina, but the cleanup efforts to it were still viewed by the media as his fault.

Lets engage in a little thought experiment. Lets say you live in a neighborhood with a bunch of houses very close together. Bob is a chain smoker and he smokes in bed and causes his house to catch fire. You call the fire department and are told "Don't worry, Bob will have to pay for any recovery costs." So the fire department never responds and 12 houses end up burning to the ground. A subsequent inspection finds that even if the fire department had come out and assessed the situation, the prevailing winds made it highly unlikely they actually would have stopped the fire. Is the fire department negligent? Of course they are. Even if it ends up they couldn't have done anything, they should have assessed the situation before rather than after, as it is they put the other houses at risk that the fire could have been stopped and they never bothered to find out. I'll note, I'm giving Obama the benefit of the doubt and accepting that if he had responded more quickly the Fed couldn't have done anything to fix the spill.

But the situation is actually ever more interesting than that, and that's what caught my attention. In the case of a natural disaster hitting a state the state bears primary responsibility for the mitigation and cleanup. The evacuation plan for the city of New Orleans was not used, Kathleen Blanco did a terrible job mobilizing her National Guard and refused to allow the federal government to take control of them at least as late as 15 days after landfall (which I actually believe was the correct decision, but you can hardly blame the President for actions taken by a National Guard whose control he was not given) and disallowed at least the Red Cross from entering the city of New Orleans. In spite of all this, though, the poor response in Louisiana (note I don't mention Mississippi, they somehow managed in spite of Bush) was Bush's fault.

In the case of an oil spill on the coastal shelf the State has no authority to act. This cleanup and prevention is entirely within Federal Jurisdiction, but the new Governor of Louisiana, Bobby Jindal, is itching to take over mitigation for his state anyway. He has requested on May 11th permission to dredge part of the coastline to build an artificial reef and block oil from hitting the coast. I'll note I'm not sure it's a good idea, but it ought to be a state matter and Obama has had 15 days and hasn't given a response at all. This, though, is entirely BP's fault.

Right to Privacy

As another Supreme Court appointment comes up, I was thinking about the left's signature judicial issue: the right to privacy and its effects upon abortion law. I find it ironic that the supposed legal justification for the central tenet of liberal jurisprudence is a "right to privacy." The left would like to make cigarettes illegal in your own home, to pass laws about what kinds of firearms you can use, to control where your child goes to school and even how you discipline them, and what health coverage you carry. Limitations on a commercial transaction involving a doctor, a few nurses, a medical billing practice, and a patient, though, are off limits because of the egregious invasion of privacy. Not all such transactions, of course, a fair share of the left actually want the government more involved in health care which would necessarily require a government office to be familiar with your medical records and to determine what treatments are efficacious for your present condition. Also not all aspects of abortion transactions, off the top of my head an abortion must be regulated by at least OSHA, the FDA, the OMH, the MHRA, the DOL, and the EEOC, and probably the CDC and the CPSC. And if, as many Democrats want, Abortion came under a universal government healthcare program then every aspect of it would be subject to government oversight, regulation and control, but it's still too private to be regulated by the government.

Overruling the Supreme Court

Andy McCarthy made a post on the Corner today indicating, in part, that he would like to see the Constitution amended so that a supermajority of Congress can overrule the Supreme Court. I frequently see proposals for changes to the Constitution, but usually they're something to allow a faster slide into a progressivist state. This is different. I like McCarthy, but I can't assert that he wants this change for reasons other than to attempt to overturn decisions with which he disagrees, but I think it's a good position in the abstract.

There actually isn't anything in the Constitutional that allows the Courts to overrule Congress at all, but it seems to have been generally agreed, even at the time of the framing, that that was a natural power of the appellate judiciary (at least from what I've read on it). They didn't give Congress the power to overturn the Supreme Court ruling that something they did was unconstitutional because that would allow a supermajority of Congress to de facto amend the Constitution. Unfortunately the judiciary at some point (I think not before Dred Scott and not after Lochner) decided that they have the right to imagine requirements of the Constitution stemming from emanations from penumbras of the text that just happened to support policies they agreed with.

I'll note, I actually think it highly unlikely that this change would ever be used. The fact of the matter is that if the Supreme Court makes a boneheaded departure from the text of the Constitution they almost always do it on grounds popular enough that you couldn't get two thirds of the Congress to overturn them (I, in fact, can't think of an instance where they couldn't get a third of Congress). I'll also note that historically the Congress was the first branch to abandon the Constitution (We know that they had abandoned it to the popular temptation by 1854 when Pierce vetoed a very popular bill for a national program for the mentally ill). In spite of these negatives, and even though I fundamentally think Democracy can't avoid the servile temptation, I think reserving for the people's representatives some way to overturn the acts of an unelected oligarchy in the form of the Courts is better than giving the country over to them. I would love to see the act state that Congress can only do it if a super majority thinks the court's decision unconstitutional, but I don't flatter myself that they couldn't find some emanations from penumbras that suggest whatever they disagree with is unconstitutional.