Things are . . . happening.
I thought about blogging on September 11, but I couldn't think of anything new to say. That's sad. Seven years, and nothing has gotten better. Nothing tall and shining has risen from Lower Manhattan except the same phantom lights that are dragged out every year to stand in for real honor. Politicians putting on a show, so they look like they're doing something meaningful. The day has become a joke. An opportunity for public displays of affected grief, vapid speeches about "never forget[ting]", and other political grandstanding. What the politicians and the bureaucrats and the local civic event planners and university presidents don't understand is that the only meaningful memorial is to do something about it. Destroy the enemy. Rebuild what was destroyed. Better. Stronger. Taller. Rekindle the flame of the West.
Veep picks came out. And they were perfectly in line with my analysis of this election. Palin is more zealously religious than McCain, and Biden is a bigger socialist than Obama. It follows the pattern. Main ticket appeals to the center while appeasing the power base with with the No. 2 slot. Everything falls into place as expected. The choice of Palin, especially, confirms that the Republicans are the party with the support of the religious right. A Republican win this year will be a major win for Jesus. We will not recover easily.
One of the dangers of a McCain presidency sits, aged and waiting to retire, on the Supreme Court. Justice Stevens is 88 years old. A very staunch liberal, Stevens also supports O'Connor's "no endorsement" test for deciding Establishment Clause cases.
That is, when someone challenges some government action (say, putting a statue of the Ten Commandments in a state courthouse lobby) on the ground that it violates the Establishment Clause ("Congress shall make no law . . . respecting an establishment of religion . . . ."), the Court will look to see whether the action appears to endorse religion in a way that makes non-religious people (or adherents of other religions) feel like political outsiders, and, if it does, will strike the action as unconstitutional. Sure it is not a perfect test, but it is the most secular approach to church-state separation currently in good legal standing. (The Lemon Test, which isn't really from Lemon v. Kurtzman, is narrower than O'Connor's test, and is on shakier footing, having been several times rejected and resurrected by the Court.)
Some on the Court hate this test, and would allow the government, especially state governments, to express their own religious views. Thomas and Scalia chief among them. Both have expressly stated that they would take the opportunity, should it be presented to the Court, to disincorporate the Establishment Clause. See, the Establishment Clause, like most of the other provisions of the Bill of Rights, apply to the states only by virtue of the 14th Amendment's command that "No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The protections of the Bill of Rights have, one by one, mostly been "incorporated" into the concept of due process, thereby being made applicable to state governments through this part of the 14th Amendment. (On exception is the 7th Amendment's guarantee of a jury in civil cases at common law where the amount in controversy exceeds $20. This guarantee has not been incorporated into due process, and is not enforceable against the states.)
So when Scalia and Thomas talk about disincorporating the Establishment Clause, they mean to take it out of the concept of "due process", and stop enforcing the clause against the states. This is in line with their jurisprudential approach, a form of Originalism called "original meaning." They argue that the original meaning of the Establishment Clause was that the Federal government should have no power to disestablish the state churches that were established at the time of the adoption of the Constitution. If the Supreme Court disincorporated the Establishment Clause, the states would be free not only to endorse religion (in the general or in the particular), but would be free to fund religion directly creating de facto, or even explicitly de jure official state churches.
What does this have to do with Justice Stevens and the election? Well, there are a few more steps we have to go through, so keep reading.
Justice Alito is relatively new to the Court, so he has not had the opportunity to express his views on disincorporation. During his tenure as a Circuit Court Judge, however, he has been a consistent enemy of the separation of church and state, supporting state action that would fail both the Lemon test and O'Connor's "no endorsement" test. Chief Justice Roberts also has said nothing about disincorporation, but he also has a not-so-secular track record on Establishment Clause issues. Even if Alito and Roberts are not in favor of total disincorporation, both are demonstrably in support of a major shift in Establishment Clause jurisprudence away from O'Connor's "no endorsement" test to a far less toothy "no coercion" test, which would only prohibit state action that forces people to participate in religious activities. This is a position that would easily gain Scalia's and Thomas' votes.
The remaining Justices, with the sometime exception of Justice Breyer, who was responsible for the flip-flop in the Van Orden v. Perry-slash-McCreary County v. ACLU of Kentucky fiasco back in 2005, are pro-"no endorsement".
Five on the good side, four on the bad.
And Justice Stevens, who is on the good side (of this issue) is 88 years old.
I suspect that Justice Stevens is holding on out of hope that a Democrat will be elected in November. Stevens is no fan of the Bush Administration, and I'm sure he'd be damned rather than allow Bush to name his replacement. If he waits to retire until after January 20th, he's got a (roughly) 50/50 chance that a Democrat will be in office.
The relation to McCain is this: McCain has the backing of the religious right. He will nominate someone who will play to their interests on key issues like abortion. Someone who is religious and excuses it under the rallying cry "States' Rights". He won't get anyone else past the Republican Senate, and he won't want to. If McCain nominates Stevens' replacement, the vote-counting scale will tip the other way. The bad way.
The odds are better than even that, if McCain wins in November, we will see a de facto state-sponsored church within 6 years. Definitely in a Southern state. Probably in South Carolina.
The Year of the Veeps
Speaking of Vice Presidential picks, my mother has a theory that neither McCain nor Obama will last a full term in office. She thinks McCain will leave office over health problems and Obama will be assassinated. Unfortunately, she didn't offer too many facts in support of this theory, but I do get the impression that a Veep Ascendancy is perhaps slightly more likely sometime in the next four years than it has been in recent decades. But perhaps it is just the Doom of the Now talking.
What Man Hath Wrought
Congress dug the grave for today's rapidly collapsing economy during the Great Depression when it formalized our transition from a rights-based government to an entitlements-based one. But the nail in the coffin came in 1977, with the passage of the Community Reinvestment Act, 12 U.S.C. § 2901 et seq.. The Act requires banks to give mortgages to people who cannot afford them, for houses in declining markets, and on similar terms with mortgages to financially stable folks in good areas. The Act requires banks to make very risky loans, and then audits the banks to make sure they're in quota compliance. Affirmative action for high-credit-risk people. So to stay in business, banks had to make lots and lots of risky, often worthless loans, but doing so took lots of money that the banks had to find some way to recoup. So they did what they could with what they had. They sold on the high-risk mortgages to big financial houses, who aggregated them and split them up into tradeable securities.
Why? To even out the risk and minimize the impact of individual defaults on these high-risk mortgages. Here's how it works when things are normal: You have 1000 mortgages. Some are high-risk, and some are sure to pay off. But sometimes it is hard to tell which is which, so you can't really get a good price for the good ones. So you dump them all in a pot and divy them up again into a new product: the Mortgaged-Backed Security. You make (for the sake of ease) 1000 of these out of your big pot. These are securities someone else can buy. Each one grants a right to enforce each of the mortgages, but only for 1/1000 of their value. In this way, the high risk mortgages are moderated by the low-risk ones. The risk of default is spread out. You can get an even price across the pot. You get a consistent product. And fluctuations in the housing market, or the wider economy, are buffered.
But when everything in your pot is shit, you don't get an evenly-mediocre but generally safe product. You get shit. So you sell it at a bargain basement price. But this shit, which is backed by mortgages that are a hair's breadth away from worthless, is extra-sensitive to wider housing and economic pressures. Because these are mortgages owed by people who can barely afford to make payments. When the economy slows, even slightly, for any reason, great galloping scads of people will miss payments, will fail on their mortgages, and will render these securities you've been selling totally worthless.
Mortgaged-Backed Securities are the market's way of trying to cope with the steaming pile of shit handed to it by the Community Reinvestment Act. But the problem with shit is you can only spread it around. You can't make it smell nice. See, the banks would have closed if they couldn't sell the risky mortgages on. And whoever they sold them to would have stopped buying if they couldn't minimize the risk and sell them on again at a marginal advantage. But the shit kept coming in, in the form of more and more high-risk "subprime" mortgages required by the Community Reinvestment Act. Until everyone is up to their earballs in shit.
The banks are involved: you get bank failure after bank failure. The pseudo-State-sponsored mortgage lenders are involved: you get Fannie Mae and Freddie Mac. The brokerages and securities houses are involved: you get Bear Stearns and Lehman Brothers and Merrill Lynch.
But where do these Mortgage-Backed Securities end up? They are traded back and forth on the markets. They sit in mutual funds and retirement funds and pension plans and individuals' portfolios. And when the economy turns and they become worthless in a heartbeat, all of these crash. The result is today's stock market crash.
The market managed these mortgages in the best way it could, but it couldn't eliminate the underlying problem. The market could only buffer and postpone the disaster created by Congress in 1977. But the market will take the blame for today.
Things look very, very bleak. Underpinning all this bleakness is the slow death of Western culture.
Next week, I will make a post covering the more optimistic side of things, and what will be needed to save the West.