In 2004-2005, when the real estate market was said to be “slowing,” and the papers were raising alarmist cries about an imminent bear market, I hoped that the market in fact was slowing for a few years to digest the unsustainable gains made in the preceding eight years. A soft landing at that level would be much preferable to a harder fall from a higher level. But this was not to be. The “slowing” market was still expanding at an annual rate of 6%-7% in our area. How awful! The market was just taking a breather before one final mad, overheated double-digit rise from 2005 to 2006. It was that last spurt that appears to contain the worst of the bad teaser loans and other ill-advised debt arrangements with unqualified borrowers as easy money had exhausted the supply of available good loans and chased increasingly overvalued real estate and bad creditors.

Since then we have been deluged with bad news about the real estate market. Those pundits who acted as if the boom market might never end are now falling all over themselves with the latest gloomy prediction of the week. As I drive through my neigborhood and as I get mailings from realtors, I notice two things. One, prices have fallen back to levels around 2003. Mind you, that still incorporates a tremendous run-up in value for the preceding six or seven years. Two, there are very few houses for sale, and those that are, mostly sell rather quickly. So things may not be quite as bleak even in California as writers who want to get their articles published (Gloom is “in” this election year!) would have you believe.

I listened to an interview with Larry Kudlow a few days ago, and he was discussing this very point. Barring any further and still unknown disasters, the market may be sniffing bottom, with a gradual recovery around the corner. Kudlow mentioned this article in Barrons. I agree with the writer’s very guarded optimism. The market will clear economic excesses with a brutal efficiency if left to its own devices.The wave of foreclosures on untenable loans to unqualified customers hit quickly and hard. The rate of delinquencies has been dropping. Therefore, the rate of foreclosures is likely to drop in the future. Once that happens, prices will stabilize. (NOTE: Look at the table in the article that shows the increase in value of real estate just since 2000, even after the price drop of the last year-and-a-half.)

Government involvement, however, is usually like the desanguinization fad in medicine. It may kill the patient, and any improvement in the patient’s condition is despite, not because of, the treatment. So, though this is an election year, it would be best for the government to avoid “saving” unqualified borrowers, as that will just delay the day of reckoning. Those that can afford the true loan rates don’t need saving. If the borrowers get to keep their teaser rates permanently, they will get an advantage for their avarice and/or stupidity that more responsible debtors don’t. That sends the wrong message. If the article is correct, the government’s “cure” would be too late and unncessary.

While the Fed’s action in regard to Fannie and Freddie may be justified on an emergency basis, I agree with those who think that those companies went off the road when they began to act not as market facilitators but as market investors in holding on to loans for their own portfolios. Their presence in the market and their privileged position distorted the normal competition that might have triggered an earlier response from a more decentralized and competitive market. In the longer term, that should be addressed, but not through a “bailout” or de facto government control of real estate lending. I think that having the government buying stock in companies that control such a large share of the country’s real estate loans sets a bad precedent of political economy.

UPDATE: For more on the Fannie/Freddie issue, here is an article by Larry Kudlow.

So, I have been taking public transportation since the beginning of the year. Yes, there is public transportation in Los Angeles. If you are lucky enough to live and work sufficiently close to it, the system can work for you. Fortunately, my law school is located a couple of hundred yards from a major subway stop, and the train station is near the freeway on which I drive to work.

I use the train most days I have to go to school. I have noticed that, in the last couple of months, there has been a significant jump in the number of riders.  The trains are fuller. Worse are the subways, which are much more crowded, except in the middle of the day. So, overall, rising gas prices have made public transportation more eceonomically viable, but less attractive. At the same time, when I drive, I notice traffic being considerably lighter than it was last summer. So the commute by automobile has become more attractive again. Having bought a gas-sipping compact, I am also finding that the direct monetary cost of commuting is well below the cost of public transportation. Still, I like public transportation because I like trains, and I gain time to do work.

But the public transportation system in L.A. has not, in my opinion, maximized its potential. They need to increase the number of cars on their trains. If Amtrak trains can pull six passenger cars on my route, Metrolink should be able to pull more than three to accommodate more riders. The subways should have six cars each, perhaps more. These changes would have a marginal cost, but would greatly enhance passenger comfort and retain riders. It would also make it easier to avoid that certain passenger from Simi Valley who is constantly picking something out of her hair and flicking it about.

The MTA has launched only lukewarm and haphazard advertising and information campaigns. I think that I have found a possible solution to create a “buzz” and get people out of their cars and into public transit: the Santiago Plan. A bit cheeky, I suppose. But I think you will find this plan as demonstrated in a stripped-down version on the videotape a compelling one. This is the best use to which I have seen the poles put. Moreover, if such a “goddess of the subway,” as the Chilean press dubbed her, also collected fares, cheating would diminish as male riders, at least, (plus some others on the Hollywood line) would happily place their one dollar fares on the person of such a conductor. That, in turn, would allow the transit police that now (occasionally) checks for fares, to be used for more productive activities, such as patrolling the stations against obnoxious drug-addled vagabonds. This is a winning proposition.

Oh,…but wait a minute. Given the looks and sizes of the great majority of transit riders and MTA personnel, maybe one does not want to have such bottoms-up acrobatics performed in close proximity to one’s visage.

BTW, notice how the enthusiastic ecdysiast required a rather substantial police escort. Why? It doesn’t appear that she was a pair of .38s or other weapons. Then she and a police escort were placed in an armored car. Was that for her protection, or for the police’s?

Is this a wise policy? Israel trades corpses of two kidnapped soldiers for 199 bodies and 5 live terrorists, including a particularly execrable specimen whose life should have been forfeited long ago. At one level, the decision shows admirable humanity. It pays deep respect to the brotherhood of soldiers. And for the parents of the unfortunates whose bodies were returned to Israel, this brings a sort of closure and allows them to honor their sons. But they were dead, and their souls have gone wherever souls go. Were their bodies worth the increased danger to the security of the living?

As the critics point out, the policy of bringing back your soldiers at all costs may be outdated when you are not dealing with regular enemy soldiers who reciprocate certain basic humane gestures, but instead with terror groups whose basic fighting tactic is to violate the laws of war with abandon, to terrorize civilians, and to butcher combatants. Simply kidnapping by stealth and killing the soldiers (or even killing them first), so that you don’t have to care for them or worry that they may escape or provide harmful information about you, gets you your policy objectives rather cheaply. Why not employ that tactic? Why not extend it to civilians? Would the Israel government dare not engage in such exchanges if the terrorists kidnapped a child, when they were willing to do so with the kidnappers of two armed adult soldiers? And, surprise, surprise, now comes evidence of mutilation or torture by the soldiers’ captors (and, no, not waterboarding).

From what I have read over the past couple of years, the Olmert government has been an unmitigated disaster. This will be seen by Israel’s enemies as another sign of weakness, and will not save Olmert from his personal and political troubles. More frequently one hears about an impending Israeli attack on Iranian nuclear facilities, as the years-long yap-fest between the EU and Iran produces nothing other than proof of Iran’s superior ability to lead the EUnuchs around by their noses. Such an attack may be Olmert’s ultimate attempt to reverse his political fortune, and maybe the government is trying to get a final deal with Hamas to get their other soldier back before launching it

On the other hand, maybe Israel is just bluffing on its own to get movement from Iran. The good cop/bad cop routine, with the EU as the former and Israel the latter. The recent news that the U.S. is sending a representative to the nuclear talks has the media buzzing that there will be peace in our time, and that the Iranians will now make a deal that they will stick with. We shall see.

Will the government investigate these speculators and hoarders of a critical commodity? Can anything be done? Will Obama look to Canada as a proper model for regulation? Or is this just more evidence of American initiative and can-do? Will McCain have a townhall-style campaign meeting with these people as future Republican smallbusinessmen in the party’s “big tent”? Especially as some of them also appear to be African-American. Are these people using the funds wisely to invest in alternative renewable energy projects, or frivolously to buy cannabis? Let’s canvass these matters to find out.

Professor Shaffer alerted me that from the New York Times comes this retread of the argument that John McCain is ineligible to run for President because he was born in 1936 in the Panama Canal Zone. The matter was dealt with in the 2000 election, but a law professor at the University of Arizona believes that another go at the topic is a good idea. Apparently, some litigants also think that this is a productive use of their time and resources. I am proceeding in my comments from my reading of the Times article, not the Arizona professor’s article in full, which is available by link from the Times piece.

The Constitution provides that, today, only natural-born citizens of the U.S. may become President. The Fourteenth Amendment provides further that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens. The professor argues that, since McCain was born in 1936 in the Panama Canal Zone, albeit of American citizen parents, he is not a natural-born citizen. First, he was not born “in” the United States. Second, though the professor agrees that Congress can by statute grant citizenship to people born outside the U.S., Congress’ 1937 law that did so for those born to Canal residents came too late for McCain. McCain became a citizen by that law, but not a natural-born one because he was already alive. He was, instead, naturalized. The professor also relies in part on his analysis of The Insular Cases from the beginning of the 20th century. He claims that those cases established that the Constitution does not apply to “unincorporated” areas of the U.S., such as the Canal Zone.

First, let me agree with some of the commenters in the Timesarticle about the courts’ predisposition towards these kinds of cases. While it is always possible to find a wacky district judge to give credence to any claim, appellate courts are more sober about these things (the Ninth Circus possibly excepted). And, think what you will about the Supremes, this is not the kind of suit they want to go near, especially with Bush v. Gore (which at least had a strong constitutional pedigree in the Court’s equal protection jurisprudence) of still recent memory. So they will throw various preliminary obstacles in the way of such a suit. Plaintiff has not suffered a particularized and identifiable injury; thus, he has no “standing.” The plaintiff also has not shown that the matter is “ripe,” as McCain has not been elected yet. Finally, this is a matter of peculiar political delicacy, with only vague Constitutional prescriptions at issue, not concrete laws and well-established constitutional jurisprudence as in Bush v. Gore. That means the Court likely would treat this as a non-justiciable political question, not suitable for judicial resolution.

Even if the Court were to go to the merits of the claim, I think that the professor is on thin ice. Parenthetically, two constitutional law savants, Harvard professor Laurence Tribe and former Solicitor General (the guy who argues most of the federal government’s cases before the Supremes) Theodore Olson jointly prepared a memo in March about this issue and concluded that McCain was eligible.

In the first place, the professor misinterprets the Insular Cases. Those cases arose out of rather mundane disputes, including commercial disputes, but they raised fundamental questions about the reach of the Constitution to the then-newly acquired U.S. possessions overseas, such as the Philippines, Guam, Cuba, and the Dominican Republic, after the Spanish-American War. The groundbreaking case in that collection, Downes v. Bidwell, had three approaches to that problem. The first, in the opinion for the Court by Justice Brown, was that the Constitution did not of its own force apply to territory that was not “in” the United States (as part of some state), but only to whatever extent Congress expressly said. That was how Congress had handled matters during the “westward course of empire” of Manifest Destiny. Unfortunately, though this was the main opinion, it was joined fully only by its author. Four dissenters, led by Chief Justice Fuller, argued that the Constitution follows the flag, and, therefore, to all territories where American officials sit. BTW, this seems to have been the position at least implicitly endorsed by Justice Kennedy in the Gitmo detainee case, though it’s hard to tell.

The third view, favored by then-Justice (and future Chief Justice) Edward White in a concurring opinion, was that there were two types of territories, “incorporated” and “unincorporated.” The former were those intended by Congress for eventual statehood. The latter were the others. As to the former, the Constitution applied in full force, of its own power and without need for Congressional action. As to the latter, the Constitution applied to whatever extent Congress declared orthe Courts determined as to unspecified fundamental Constitutional rights. White’s position eventually became the majority on the Court. BTW, this is the view formally used by Justice Kennedy in the Gitmo detainee case. So, if it is the professor’s view that the Insular Cases held that Constitution did not apply to unincorporated territory, except perhaps through Congressional action, he is wrong. At least some provisions of the Constitution apply of their own force even to “unincorporated” territory. But I don’t think that this is a crucial point in the argument.

More significant has been Congressional action in this area. The Constitution does not specficallydefine “natural born citizen.” Constitutional ambiguities can be fleshed out by adhered-to practice, especially through legislative, executive, and judicial precedent, all of which create a “customary law of the Constitution.” Congressional laws since 1790 have determined that people born “outside” the United States to American parents who have not renounced their allegiance, are Americans by birth. The crucial point there being “parental transmission” of “American citizenship” by birth. And, to avoid irrational results, there is no distinction to be made between American “by” birthand American “at” birth.

As an aside, if one wants to make an argument that there is a difference between American “by” birthand American “at” birth, I might reply with a tongue-in-cheek argument that a too-literal interpretation of the phrase “natural born citizen” establishes three qualifications. First, the person must be a “citizen.” Second, the person must be “born” a citizen. And, third, since the Constitution does not stop after the first two, that the person must be “natural” born. The last can mean only one thing, namely, someone who was born by the natural process, not by Caesarean section. Perhaps this would exclude even people born to mothers who had an epidural, or even those who had assistance from someone else, such as a doctor or midwife. Obviously, this is absurd, but so is an argument that someone born to American parents in an area subject to American jurisdiction is not a natural born American.

The professor claims that a statute in effect in 1936 gave citizenship to persons born to American parents outside the “limits and jurisdiction” of the U.S. That law seems to have been a descendant of the 1790 law I mentioned earlier. But the professor claims that this didn’t apply to McCain because he was born outside the limits (geographically) of the U.S., but within its jurisdiction. A 1937 law that specifically gave American citizenship to Americans born in the Canal Zone came too late for McCain to be a natural born citizen because he was already alive. That assumes that only through that statute could someone become an American citizen.

However, citizenship appears to be based on practical considerations of several factors. The 14th Amendment talks about both geography (born in the U.S.) and jurisdiction (which here means political allegiance), as we want to avoid giving citizenship to persons who are born here but have no formal allegiance to this country (e.g., the children of foreign diplomats posted here). BTW, this raises an interesting question about whether the children of illegal aliens (or even temporary workers) are Americans just because their parents made it into the country before giving birth. Those parents, after all, are not formally severing their allegiance to their parent country and giving it to the U.S. Therefore they cannot transmit such allegiance to their children.

But the 14th Amendment is not exclusive as to citizenship. It sets a guarantee that certain people will be deemed citizens, a minimum protection that could not be changed by statute or by judicial interpretation. (Historically, the purpose of that clause was to overturn a contrary, state-citizenship based, determination of U.S. citizenship in the Dred Scott Case.) Of course, Congress can statutorily define commonly understood meanings of citizenship, as the cited laws indicate, or even expand such meaning. But those laws are simply positively adopted definitions of a commonly understood approach to citizenship, namely, that parents with allegiance to the country transmit their citizenship to their offspring at birth. And if, as the statutes make clear, mere parental transmission can suffice, even though the birth occurs outside the U.S. and its (political/legal) jurisdiction, then it follows that someone is an American if his parents are American (and maintain their allegiance to the U.S.) and he is born in a place that, while not “in” the U.S., is subject to the (political/legal) jurisdiction of the U.S.—i.e., the Canal Zone at the time of McCain’s birth.

This is not the first time these questions have arisen. Senator Barry Goldwater, the Republican candidate for President in 1964, was born in Arizona Territory to American parents. So, he was not born “in” the United States, but he was clearly an American citizen, natural born. Al Gore was born in the District of Columbia, again, arguably, not “in” the United States, as D.C. is not considered the same as a state for all constitutional purposes. But his American parents clearly transmitted American citizenship to him at birth.

Of course, the professor might seek to distinguish those cases by saying that those areas were permanent “incorporated” parts of the United States, unlike the more tenuously-connected Canal Zone. What then to make of Governor George Romney (Mitt’s dad), who campaigned unsuccessfully for the Republican nomination in 1968? He was born in Mexico to American parents who had moved there when their parents had left Utah in the 19th century after polygamy was rejected. Romney’s parents had never renounced their allegiance to the U.S. and returned when George was 5 years old. It was broadly accepted that Romney could serve as President, were he elected. Clearly, he was not born in any territory of the U.S., “incorporated” or otherwise. In that sense, McCain has a much stronger connection to the political/legal jurisdiction of the U.S., being born in an area that was closer to being “in” the U.S. Moreover, McCain’s parents were in the military. So his parents had a much clearer political allegiance to the U.S. than Romney’s. If constitutional custom has been to accept as a natural born citizen a child of American citizens who have not renounced all allegiance to the U.S., then McCain clearly qualifies.

The professor, a registered Democrat, professes no political motive in this. Perhaps. But, like an old TV series, the episode is in continuing reruns among the left talking heads and blogosphere. These are the same people, of course, who think that foreign unlawful enemy combatants detained at Guantanamo are entitled to all constitutional rights of American citizens detained “in” the U.S., because Gitmo is not just under some political/legal jurisdiction, but is under the “sovereignty” of the U.S. Well, the Canal Zone was under at least the same “sovereignty” as Gitmo. The difference is that in one case we are talking about America’s sworn enemies—and unlawful combatants, at that—whereas in the other we are talking about America’s soldiers. Why is it that, similar to their efforts not to have the votes of soldiers posted overseas counted in 2000, those folks are so eager to deny political rights to members of the American military?

The California Supreme Court has followed the lower state courts and refused to order that a proposed initiative to limit marriage to opposite-sex couples be removed from the November ballot. The supporters of same-sex marriage, having been able to achieve their end as usual only by the elitist and anti-democratic means of persuading four out of seven appointed judges to change the always accepted understanding of marriage and of the state constitution, decided to roll the dice once more. They again hoped to use the judicial guardians to prevent the voters from having a say about the meaning of the constitution. That is not the actionof someone confident about the political outcome. This time they lost. But one can rest assured that, if the constitutional initiative is approved by the voters, those same people will be back in court to try yet again to thwart democratic self-determination. That is one of the reasons I find the liberal slogan to “have every vote count” so galling and hypocritical.

We have heard a lot about the tide of foreclosures that threatens to engulf America. Americans are learning that Fannie and Freddie are not long-lost hayseed cousins. Here is a brief analysis of the scope of that tide and its effects on borrowers, buyers, and real estate agents.

Are there going to be “cartoon riots” in parts of the world (Berkeley, Greenwich Village, West L.A.) over this depiction? Much ado has arisen about the cover on the latest New Yorker magazine featuring the Obamessiah and his bitter half. The magazine has described it as a dig at the right’s “paranoid” view about the anointed couple. The Obamas see it as tasteless and offensive, as if an honestly and unambiguously left-leaning publication is really going to smear Obama. I think Ann Althouse’s comments are dead on. Obama is so ideologically saturated that he cannot crawl outside his dour self and get the humor in something that might be critical of him, even if only a wee bit, and even if it mostly targets his opponents. And he is such a full-on elitist and so full of himself that, even if he could get the humor, that slight bit of criticism would make it offensive and tasteless, rather than just, well, “pointed.”

One of the things that I like about W (even as I sometimes gnash my teeth about various of his policies) is his self-confidence. His critics see that as arrogance, but I don’t see it that way. W has a quiet self-confidence that allows him to shrug off people’s attempts (think David Gregory and other White House “reporters”) to badger and corner him. It is a masculine “arrogance”: “Don’t push me; I know how to deal with the likes of you.” Think John Wayne. Or Ronald Reagan.

That is quite different from the arrogance that Obama just exudes: “Hey, do what I tell you. I know what’s best for you, and I won’t let you be complacent about your life.” That is a hectoring, or at least nannying, arrogance. Think Hillary. Or Dr. Laura. Or Jimmy Carter.

His type of self-confidence allows W to have fun at the expense of himself and others (see the comment Ann Althouse mentions about being a polluter), and to come across genuinely as a man of the people. Someone with whom to hang out at your house, or go share a beer or even a cup of coffee. Reagan had the same humor. Remember the inadvertently live microphone in 1984, where Reagan joked about outlawing Russia and that the U.S. would start bombing in five minutes. Ill-advised, perhaps, but funny in the context. Remember also Reagan’s joking with his doctors as he was gravely wounded in the assassination attempt and being wheeled into surgery. Obama would probably be telling the surgeons how to do their jobs. He reminds me of other “leaders” who have believed that their opinions on everything are the Word. Obama would be great at an academic seminar with people of similar egos and self-importance. But invite him to your house? Get a beer or a cup of coffee? Go bowling? Not so much.

I disagree, though, with Professor Althouse’s point that the cover is a spoof of the “fears and lies” about Obama. To work effectively, every spoof must have a kernel of truth. Otherwise, it approaches a printed equivalent of slapstick. So, while Obama is not a Muslim (though—however that is relevant—he was considered such until his apostasy conversion), he is long and closely associated with a version of “Christianity” that is at odds with the overwhelmingly accepted Christian message of love and universal brotherhood and unity in Christ. While his bitter half may not be a revolutionary in the sense of the Angela Davis throwback pictured on the cover, her remarks and writings and her rhetorical stylings go well beyond those associated with almost all spouses of presidential candidates. Actually they go well beyond those associated with most presidential candidates and those accepted by most Americans. While Obama has not burned the American flag, he ostentatiously refused to wear a flag lapel pin and pronounced sententiously on the patriotism of not wearing one. Until, that is, political circumstances such as the Reverend Wright eruptions, made it expedient to hold his press conference in front of a forest of American flags and to start wearing just such a pin.

If this is the Obama camp’s reaction to “pointed” humor, one wonders what the reaction would be to something of the tone of, say, a Doonesbury cartoon. Michelle Malkin has a collection of a few of the left’s cartoons (including, of course, those distributed in publications such as The New York Times) and degradation and assassination fantasies. What would the reaction be if that were the Obamas, instead of Bush, Cheney, Rice, et al. who were pictured? Hate crime accusation, anyone? Notice the gleeful and non-satirical Rolling Stone cartoon about the tortures suffered by McCain. I wonder how the metrosexual Obama (or Rolling Stone writers and editors) would have fared at the Hanoi Hilton? Did you hear a lot of media hand wringing about that cartoon? Neither did I.

UPDATE: Case in point: I like W’s response to the reporter’s stupid question. Let the American people decide. They’re competent to figure this out. What would Obama have said?

Via Professor Shaffer. More evidence that life beats The Onion in absurdity. What can one say to this? These people are beyond parody.

It reminds me of the time a few years ago when a big brouhaha erupted in D.C. after some bureaucrat used the descriptive word “niggardly” correctly in a budget meeting. Here are some more examples of the same absurdity, along with a balanced assessment of the matter, in some musings by John Derbyshire of The National Review. Upshot: Out of civility, don’t say rarely-used, insensitive-appearing homonyms (oops) around ignorant and illiterate fools. [There is even a website devoted to the offending word mentioned above.]

This is not good news for McCain or the Republicans. I think that the article is correct, in that historical patterns strongly favor the Democrats and Obama. However, that does not account for the fact that Obama is the least experienced and qualified candidate to be President, ever. Based on that fact, I like this scenario much better. On the other hand, for my preferred scenario to work, the American voters must choose wisely and rationally, something on which one would not want to place too high a wager. Even under this scenario, by the way, I am less than thrilled. The winner would be McCain. My wish is that the somewhat better ideas and philosophy of the, one hopes, politically chastened, Republicans will triumph. Even that wish may be excessively optimistic.

Here is another alternative scenario that also favors Obama, at least on paper. I am less impressed by that one, as it simply seems to explain the usual to-and-fro between the in-party and the out-party, as voters tire of one and then the other. This version does not explain the more fundamental realignment elections, where one party’s broad political philosophy and program become the dominant framework of ideas and action. This election may well be part of the normal change, without working a fundamental alteration. If Obama’s mantra of hope and change is as vapid in practice as in rhetoric, people will eventually get bored, and nothing much will have been altered. On the other hand, Obama’s fundamentally leftist leanings and associations may mark a more significant shift. Either way, the people will eventually get Obama-fatigue and remember why they voted Republican before, but by then the terms of our “social contract” will have been directed away from individual freedom and choice in ways that will be difficult to repeal.