Merry Christmas! Here’s to Peace on Earth, and Mercy mild, and recycling more of the Christmas card than usual!
Also, this is the third consecutive Bears-related Christmas card. They technically haven’t been eliminated from playoff contention yet, but their chances of making it are lower than those of snow falling on my house today. Hopefully Poles will do some good wheeling, dealing, firing, hiring, and drafting this offseason.
Former student “Popcorn Papacy” wrote: “Do [Justice] Sotomayor’s comments during Dobbs v Jackson about powers enshrined to the Supreme Court by the Constitution affect how you teach Marbury v Madison (judicial review!) at all? If they do, how so?”
I responded, “Do you mean her comments/questions during oral arguments, her commentary in the dissent (which was jointly written with Kagan and Breyer), or some public comments she might’ve made in a speech or interview?”
Papacy responded: “Ah! It was a quote during oral arguments that was mentioned in a Politico opinion piece I was reading. The quote is in the opening paragraph.”
Because we don’t skimp at this website, here are the first two paragraphs of the piece:
Last December, during oral arguments in Dobbs v. Jackson Women’s Health Organization, the case in which the Supreme Court overturned Roe v. Wade, Justice Sonia Sotomayor noted that “there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.”
It was a remarkable observation. Sotomayor’s primary intent was to argue that rights and prerogatives need not be explicitly delineated in the Constitution for them to exist. The right to privacy — more specifically, the right to terminate a pregnancy — does not appear anywhere in the document, but neither does the Supreme Court’s power of judicial review. Both exist by strong implication.
So here’s my response to Popcorn’s original question:
No.
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Anyways, the Bears were awful today. Poor play-calling, not nearly enough vertical pass calls, Fields appears not to have progressed much… really depressing. Even worse, Jordan Love seems to be the real deal, so we Bears fans have another 15 years of Hall of Fame level Packer quarterbacking to contend with, and– hold on a second.
The staff is telling me I need to write more about Sotomayor’s comments, as if they run this show. Fine.
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“How I teach Marbury” is pretty simple. I train the students to say “judicial review” out loud whenever they hear “Marbury v. Madison,” and vice versa, so that that case and that power– the power to strike down unconstitutional laws– are inexorably intertwined in their brains. Then I explain what it all means, though this part isn’t as memorable. Judicial review was intended to be a power of the Supreme Court under the Constitution, but it’s not literally written in there, so some whiners like Thomas Jefferson and (ironically, given his work on the document) James Madison argued that states should be able to exercise judicial review over strike down* federal laws. But SCOTUS Chief Justice John Marshall had the conch, so he made clear that the Supreme Court had the power of judicial review.
So, no, nothing in Justice Sotomayor’s comments would lead me to change how I teach these concepts. But allow me to go further and be nit-pickier.
According to the Politico article, Sotomayor claims
There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means.
[emphasis mine]
Yes there is. Read the first sentence of Article III. “The judicial power of the United States, shall be vested in one Supreme Court.” Does it literally state that the Supreme Court is “the last word on what the Constitution means”? No. But is there much else you can deduce after reading it? Also no.
The Politico article acknowledges this, without explicitly calling Sotomayor out for it. Next line:
It [judicial review] was totally novel at that time.
[brackets mine]
No it was not. Look up the history of judicial review in the United States prior to Marbury. Look up Federalist 78– in which Hamilton writes “It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.” Look up the Judiciary Act of 1789 (part of which, ironically, would be struck down in Marbury). Look up Hylton v. US, which was the Court’s first use of judicial review.
Something which has several recent precedents and is strongly implied by the Constitution (if not explicitly enumerated, depending on how you want to read Art. III, Sec. 1) is not “totally novel.”
Again, the Politico article acknowledges this, without explicitly calling Sotomayor out for it. Next line:
And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.
[all hers]
This is true, and judicial review is a layup in that regard. She’s leading into the idea that Roe was “reason[ed] from the structure of the Constitution,” which I won’t address right now aside from pointing out that many of the Constitutional provisions used to justify a privacy-protected-right-to-abortion could just as easily be used to justify a prenatal-right-to-life. They generally aren’t used that way, but they legitimately and fairly could be.
Sotomayor’s comments generally reflect how Marbury is normally taught, and would not change how I teach about it. However, if she were in my classroom, I would correct her absolutist descriptors (“not anything,” “totally novel”). She makes it sound like John Marshall grounded his decision in Constitutional precedent while simultaneously conjuring it out of thin air. But it can’t be both. In short, whoever appointed her to the Court deserves to have his favorite football team suck forever.
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There’s a ton more to be said about the Politico article, but it’s late and I’m tired.
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* TJ and Madison wanted state legislatures to be able to strike down federal laws that they deemed unconstitutional. That’s not a judicial procedure, thus it wouldn’t be judicial review, thus the strikethrough of my original words and the edit in italics.
A former student asked: “Can you make a thought-piece on this news article? [Link here] I was looking at the comment section and I do not understand a lot of what is being claimed. If you could clarify the economic root(s) of this issue, I would appreciate it. If not for whatever reason, that’s fine. Thank you.”
That left a lot of ground to cover, so I asked for some more specific questions, which ensued, and are blockquoted here so I can finally answer some of his questions by blowing through them post-haste. I numbered them for convenience’s sake.
[1] How much of Jacksonville’s housing situation has to do with national inflation versus more local factors like population increase and companies buying up properties solely for rentals?
I don’t know how much of the increase is due to local factors rather than inflation, mostly because I haven’t done any econometrics since the first Clinton administration. But Florida’s population is growing faster than the national average, so it stands to reason that local factors account for more of Jacksonville’s increase than they do for most of the rest of the country. Another factor might be a slight slowdown in housing starts (i.e., new construction). I don’t have local information handy, but looking at this national graph from the St. Louis Fed…
…it looks like housing starts recovered from the lockdowns by mid-to-late-2020, went up a bit until spring of 2022, and have dropped off a bit since then. So the slow-ish supply is likely contributing to higher prices, too.
[2] Is the solution to simply let the market work itself out?
[…]
[6] How much should government intervene if at all?
Sowell tells us that there are no solutions, only trade-offs. Markets usually manage trade-offs better than governments do. I say “usually” instead of “always” because government has to handle some things better than markets do, right? Doesn’t it? But then usually government screws up the trade-offs, too.
Someone might point out “insanely massive firms buying up as many houses as possible with that pandemic money” as an instance in which government must intervene, but if so, that seems like “government trying to fix its own mistake” rather than “government fixing the market’s mistakes.” I don’t know exactly how to fix that one, but “not giving those firms helicopter cash” seems like a good start.
You know what? Keep it simple: let the markets decide how much housing is built, how much is owned, how much is rented, etc. I know it’s politically popular to push for high home ownership levels, but I’m less and less convinced that the economic advantages of home ownership dramatically outweigh the advantages of renting. There’s no apparent optimum level of either, so government shouldn’t try to achieve one.
What should the government do? Stabilize the dollar so that mortgage rates are driven by real interest rates instead of by inflation. The closer inflation is to zero, the more easily you can figure out whether high housing prices are driven by market forces, and the more easily you can answer question [1] above.
[3] Is there going to be another major housing crisis?
Yes. When? I don’t know.
[4] What role do banks and realtors play?
They primarily try to optimize their profits, and lobby governments for policies favorable to themselves. Whether those policies benefit owners and renters is secondary. But if humans aren’t buying and renting homes, then the banks and the realtors can’t make money*, so there’s an incentive to make sure at least some folks have roofs over their heads. More specifically, there are incentives to make sure that prices are high and/or the quantity of sales is high. But that’s no different from any other market.
[5] Do more houses need to be built?
Maybe. It’s possible the market is signaling a need for more housing and starts, but it’s also possible the actual numbers of houses and starts are fine and there’s just too much cash chasing them. I don’t know which is more right.
[7] How much does the minimum wage issue matter here considering the rapid inflation?
Errrrrrrrrrrrrrrrrmmmmm this is something I haven’t thought about in a long time, but I think conventional wisdom about minimum wage is a bit off in several regards. It warrants its own post. But to answer your question quickly, raising the minimum wage will not resolve housing policy problems, and minimum wage is not causing housing problems (except maybe very indirectly).
I’d like to say that better financial literacy education would mitigate many of these problems, but the trick would be getting students to pay attention, and even if they do, financial literacy often goes right out the window when politicians play with other people’s money.
A few other items were asked about in the email, but I’ll address them another time. I hope this helps a bit.
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* Of course, there are always bailouts. Bailouts probably aren’t great for the market, but they are presumed to stave off the torches and pitchforks.
Happy 247th birthday to the United States, and happy 151st birthday to Calvin Coolidge!
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I started typing a lengthy complaint about the colors of the US national teams’ jerseys, only to decide that they’re not as egregiously far from the correct American shades of red and blue as I originally thought. So that went into the circular file, and I decided to go with a toast:
May your burgers and dogs be grilled to perfection, may your beverages slake your thirst amidst the outdoor sun and steam, and may you fell any Redcoat or Hessian who dares cross you!
God bless America!
I have begun binging a show called “The Bear.” The language is a bit strong, but it is captivating.
The star of the show is the Chicago Italian Roast Beef Sandwich, so I have no idea how I never heard of it until today. Episode 1 is action-packed, replete with shot after gorgeous shot of roast beef being cooked, seasoned, doused in gravy, bestowed upon rolls, slathered in giardiniera, and enjoyed by all who cross its path.
The delight is not merely visual. There’s some top-notch writing and real tension to savor. For instance, somehow– and we don’t know why yet– one of their vendors delivered bone-in instead of boneless beef. That meant not only that they’d have to braise the beef, but also that it would take two hours longer than boneless beef. At one point it’s even revealed that some rolls haven’t quite been baked perfectly. But the real crisis comes in episode 3, when some onions disappear and an entire bucket of stock spills. No idea where it’s going, or where it even can go, from here.
Interestingly, the only references to the Chicago Dog so far have been on menus, receipts, and a six-foot inflatable hot dog with a smile on his face. It shouldn’t be too difficult for the writers to bring Chicago Dog into any of the story arcs; we already know that the restaurant where Italian Beef lives sells both items. But why string it out? Is Dog going to be brought along later in the season as a sort-of rival, or even flat out enemy, of Beef? Are they saving up for a season-ending cliffhanger? We’ll see.
There’s also some Emmy-bait about family, addiction, leadership, blah blah blah. Whatever. The Italian Beef shines, and earns its laurels.
VDV'S JOURNAL 