The Big Picture and the Closeup

It seems quite possible the Supreme Court could act in such fashion as to lavoid announcing a constitutional right for same-sex couples to marry. And there is a reasonable chunk of the commentariat encouraging the Court to do just that. In my view, such a sidestep would be a big mistake becauseIt would put the Court in bed with stupidity, a place the Court can ill afford to be these days.

When, at his confirmation hearings, Chief Justice Roberts claimed his job was just calling balls and strikes, he was being disingenuous. The very concept of balls and strikes presupposes a strike zone, and constitutional interpretation is full of competing strike zones. In fact, there aren’t even reliable rules for choosing among these strike zones.

What’s to prevent, for instance, a legislature chartering a bank one of whose very purposes is to be locally owned and controlled, with charter provisions that prevent out-of-state takeovers or incorporation into bigger banks? And charter provisions that protect its borrowers from usurious out-of-state lending rates? I can hear Tea Partiers complaining that all that local regulation would drive investors screaming to the exits – but bank investors have historically done poorly with the existing setup. Could this be worse?