Freespace

Defending the rights of Indian children in Minnesota

I had the honor of arguing the constitutionality of the Indian Child Welfare Act (and its Minnesota state adjunct, called MIFPA) in the Minnesota Supreme Court earlier this week. You can watch the video of the argument here.

Talking with Armstrong & Getty about price controls and contracts of adhesion

I joined Armstrong & Getty this morning to talk about this interesting story where Disney is trying to enforce an arbitration clause against a guy for a tort that occurred at one of their parks, based on the terms of service contract when he signed up for Disney+. But then I stuck around to talk about how stupid price controls are. You can listen here:

Shadows of Venus

I have some new poems in Medusa’s Kitchen today.

John Varley: an appreciation

I had the opportunity to pay a little tribute to my very favorite writer, the science fiction master John Varley, in Discourse. This month also marks the 50th anniversary of his first publication, and I spend a little time examining his career and some of the elements that make his work so special: his hippie-style individualism and the smooth, precise style of his prose. Here’s an excerpt:

Varley’s fiction is marked by radical inventiveness, yet the qualities that make his work truly extraordinary are the smoothness of his prose and the realism of his characters. Together, these suspend the reader’s disbelief even through the strangest premises, in a manner that indeed resembles Heinlein, but without Heinlein’s distracting penchant for preaching about his political and social fixations. Actually, Varley’s writing more resembles that of hard-boiled detective writers like Donald Westlake….

Varley’s trademarks [are] independent, clever characters guided by common sense instead of conformity, and more likely to build rockets in their garages than to complain about others not doing so. Above all, his characters often see exploring the unknown not just as an adventure, but as a path to the authentic, individual life—one that won’t be clean or easy, but will be earned, and therefore genuine, in a way that can never be true of the unexamined life that computerized mass production makes so cheap. It’s a theme that would have been familiar to Emerson, who wrote: “The civilized man has built a coach, but has lost the use of his feet. He is supported on crutches, but lacks so much support of muscle.”

( Read the rest…)

The future of liberalism: secular or religious?

In Atlanta some weeks ago, I participated in a panel with David Wolpe, Ayaan Hirsi Ali, and Craig Biddle entitled “The Future of Liberalism: Religious or Secular?” Ostensibly it was about whether political liberalism (in the broad sense of that term) can be maintained on a secular basis or whether it needs religion to sustain it. But our conversation varied far from that bullseye and ended up on some classic arguments for an against the existence of God, and whether one can have spirituality without supernaturalism. The conversation wasn’t as disciplined as I would’ve preferred—but the audience seems to have really enjoyed it. You can watch here:

While obviously my perspective affects how I see this, but: I do think it was pretty obvious that both Wolpe and Hirsi Ali resorted to a variety of devices to avoid the logic of the arguments. Wolpe’s definition of “faith” was so incredibly vague as to be effectively meaningless, for example, and he frequently resorted to horse laugh, sneering, and other logical fallacies. Hirsi Ali did not dispute—but in fact conceded—that her newfound religious belief, such as it is, was a matter of “subjective choice” on her part (which seems blasphemous to me) and nobody tried to answer my point about the Second Commandment. But the point I hope really came home was that both, and especially Hirsi Ali, are reacting against the element within the atheist community that is effectively nihilistic—that offers no positive philosophical teaching about values. That’s certainly understandable. The Objectivist community has said all along that the biggest problem with the “New Atheism” is that it offers only arguments against wrong ideas, but has never proposed convincing arguments in favor of good ideas.

The song of the New World

A couple weeks ago, I spoke at Level Up (the annual Objective Standard conference) about an unusual subject: the Ninth Symphony by composer Antonin Dvorak, also called "From the New World." It's a classic today--according to one poll, the most popular symphony ever written--and in my presentation, I explain how it expresses the astonishing transformation of human life in the late nineteenth century, which resulted from political and economic freedom. The video's been uploaded to YouTube, and you can watch it here:

The Identity Left’s war on science

In my latest book review for The Objective Standard, I examine a new memoir by anthropologist Elizabeth Weiss, who ran into trouble for her criticism of NAGPRA, a federal law that forces universities and museums to turn over scientific specimens to Indian tribes (who then destroy them). The law was originally written in response to allegations of theft and grave-robbing by scientists, but today it’s often used by Native religious fanatics and their work allies who are committed for ideological reasons to the destruction of science and civilization. Here’s an excerpt:

Religion is, indeed, what instigates much of the controversy involving NAGPRA. Some Native groups hold that their tribes were created within North America by the gods—that the first humans emerged from the Earth at the behest of Wakȟáŋ Tȟáŋka (Great Spirit) or were transformed by Áwonawílona (the Maker of All) out of web-footed creatures swimming in the underworld, to cite just a few examples. Many tribes are also hostile to the land-bridge theory most anthropologists hold, according to which humans migrated to North America about thirty thousand years ago through what is now Alaska.

But most of those responsible for implementing NAGPRA, and state-law versions of NAGPRA such as California’s “CalNAGPRA,” don’t hold these religious beliefs themselves. Rather, they’re adherents of postmodernist, anti-reason ideologies according to which Native Americans are spiritually pure due to their being “untainted” by Western civilization. According to this “noble savage” myth—which dates back to Jean-Jacques Rousseau—indigenous peoples are models of moral sanctity, political peace, and ecological harmony with nature. In other words, adherents of this anti-Western ideology view Native Americans not as individuals facing real challenges in contemporary life, but as stereotypes—convenient symbols for everything opposed to capitalism, technology, and the complexities of modern life. As Weiss notes, acolytes of postmodernist mythology are sometimes motivated to be more “Indian” than actual Native Americans themselves—even pretending to be Natives when they aren’t—and taking up what they consider a moral crusade against science and reason in the name of “social justice”—a crusade that does nothing to benefit Native Americans or anyone else.

Read the rest…

Libertarianism doesn’t need an ‘update’

A few days ago, Randy Barnett argued on the blog Law & Liberty that libertarianism needs to be “updated” in light of modern developments. I disagree, in an article published this morning in Discourse. Here’s an excerpt:

Barnett’s claim simply isn’t true. Libertarianism is not an “ideal theory” in the sense he means, and while its approach to the problem of private power differs markedly from those offered by other political philosophies, its distinctive answers to the questions he poses are a sign of its strength, not its weakness.

Philosophers use the term “ideal theory” to describe an argument that posits an optimal society based on abstract, idealized assumptions about people’s behavior. Libertarianism is the opposite of this. It doesn’t assert that people are inherently good, or that they would accomplish great things if government merely got out of the way (although that’s often true). Instead, it recognizes that people are fallible—often ignorant, foolish and malevolent—and concludes that for this very reason, their ability to use government’s coercive powers should be minimized. Thomas Jefferson put the point succinctly when he said: “Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?”

In other words, libertarianism is skeptical, even pessimistic, about human capacities—especially those of the humans who wield government power, and are as fallible as the rest of us, if not more so. Precisely because libertarianism does not make idealized assumptions about people’s behavior—and holds that utopia is impossible—it concludes that the least bad alternative is to leave people free to make their own choices (subject to legal accountability if they harm others). After all, they have a stronger incentive to avoid bad decisions in their own lives than any outsider could possibly have.

Read the rest…

The United States Governed by Six Hundred Thousand Despots

In my latest book review for The Objective Standard, I write about a newly re-discovered memoir by an escaped American slave named John Swanson Jacobs, whose better-remembered sister Harriet also wrote a famous memoir of her days in slavery. Unfortunately, this new book is hampered by the editor's woke Newspeak:

Comments like these are symptomatic of Shroeder’s approach—which combines the gibberish lingo of Critical Race Theory with the nihilism (or as Shroeder prefers, “Black radical antisentimentalism”) of the 1619 Project—and these severely mar the biographical essays and explanatory notes in the book. Consider Shroeder’s assertions that “[the] sentimental mode that is hardwired into the liberal contradictions of American national fantasy. . . makes scenes of pain serve as both embodiment of Black inhumanity and proof of Black humanity,” or that Six Hundred Thousand Despots “radically rewrites the humanitarian contract between reader and text.” To the extent these phrases mean anything, they aren’t true.

Faddish jargon like this is bad enough when it’s merely distracting, but Shroeder’s efforts at profundity repeatedly cross the line into the ridiculous. At one point, for example, he says that “slaveowners enacted their violence in the marketplace by breaking the bodies of the enslaved down into parts (field hands, long fingers for picking cotton, and so on).” Presumably, if using a term like “field hands” constitutes “breaking the body,” Douglass was also breaking it when he wrote “Men of Color, to Arms!” during the War, and Garrison was equally to blame when he prayed, “Let us shiver to atoms those galling fetters, under the pressure of which so many hearts have bursted [sic]. Let us not shackle the limbs of the future workmanship of God.”

In another place, Shroeder interprets Jacobs’s farewell letter to his slavemaster, Sawyer, in an equally bizarre way. Jacobs wrote, “when I have got settled I will give you further satisfaction,” which Shroeder sees as “a play on words,” because “[the term] ‘settled’ often meant putting things in a desired order and closing an account,” and he concludes that Jacobs was really “call[ing] for reparations.” Actually, it’s more likely that Jacobs just meant...settled.

Read the rest...

Supreme Court homelessness ruling could help defeat crisis

I have an article on Fox News’s website this morning about the Supreme Court’s decision in the homelessness case, Johnson v. Grants Pass. Excerpt:

Even city officials acting in good faith found the Ninth Circuit’s one-size-fits-all rule unworkable — and why city officials not acting in good faith found that rule a handy rationale for simply leaving the homeless on the streets, as Phoenix officials did when they created the infamous "Zone."

This new decision also makes clear why local communities must take responsibility for enforcing the law to protect taxpayers and property owners, rather than engage in massive, ideologically driven dereliction of duty.

Read the rest…

Talking about Chevron deference with Andrew Heaton

I had a good time talking with Andrew Heaton on his podcast about why Chevron Deference deserved to die--and what it means for the future.

The court got it right on free speech and social media

I have an article in The Dispatch this morning about the NetChoice cases, which concern the free speech rights of social media companies. Excerpt:

In 2021, lawmakers in Florida and Texas passed laws that prohibit “social media platforms” from deleting, editing, “de-boosting” or “inhibiting the publication” (whatever these things mean) of users’ messages, without first providing a “precise and thorough explanation” for doing so. Moreover, the laws entirely forbid social media companies from deleting or editing any post by a “journalistic enterprise”—defined to include blogs. Lawmakers adopted these laws after some conservatives complained that social media companies were “censoring” or “shadow-banning” their messages, terms which are effectively synonyms for “not publicizing someone’s messages as much as conservatives would like”....

The First Amendment protects the freedom of speech, not some “balance” of speech that politicians consider worthwhile. In fact, for all of American legal history, courts have made clear that the Constitution doesn’t call for any (so to speak) ideological affirmative action, in which government boosts “underrepresented” viewpoints and muffles others that are heard “too much.” The protection of free speech is achieved, not by giving bureaucrats power to “balance” who hears what, but, in Kagan’s words, “by preventing the government from ‘tilt[ing] public debate in a preferred direction.’”

Read the rest…

Supreme Court strikes down administrative state tyranny

I have an article in the Orange County Register today about the Supreme Court abolish the doctrine of Chevron deference. Excerpt:

The U.S. Supreme Court took an important step in defense of both democracy and freedom on Friday when it overruled a 1984 case called Chevron v. NRDC. That decision—which gave federal bureaucracies power to essentially act without meaningful legal limitations—was adopted out of a concern for “judicial restraint.”

It required judges to accept (or “defer to”) legal interpretations adopted by unelected bureaucrats, despite the fact that judges are supposed to be the ones responsible for interpreting the law. The predictable result was that administrative agencies began interpreting laws in ways that expanded their own power. In other words, a “restrained” judiciary ended up meaning an unrestrained bureaucracy.

(Read the rest…)

Homelessness, Chevron deference, Armstrong, Getty, oh my

I joined Armstrong & Getty this morning to talk about the Supreme Court decisions in the homelessness case and the case about bureaucratic power. If you missed it, you can listen here.

Protecting taxpayers

I recently joined Richard Morrison on the Competitive Enterprise Institute’s show Free the Economy to talk about state constitutional “gift clauses,” which forbid government subsidies to private businesses. (I recently published a pair of law review articles about the origins of Arizona’s Gift Clause, and about how it’s interpreted today.) You can watch our discussion here:

The "Mandatory Clauses" of state constitutions

I've just signed a publication agreement with the Gonzaga Law Review to publish my article "The 'Mandatory' Clauses of State Constitutions." The article is the latest in a series I've been doing on the origins of interesting provisions of the Arizona Constitution--in this case, Article II Section 32, which says that everything in the Constitution is mandatory unless otherwise provided. That might seem like a weird thing to say in a constitution, because one might naturally assume that anything in a constitution is automatically mandatory. But thereby hangs a tale! It turns out that many nineteenth century courts did not think so. So constitution makers in California, Washington, North Dakota, South Carolina, Utah, and Arizona took steps to forbid "judicial restraint." And the legacy is the Mandatory Clauses, which, as I argue, require courts in those six states that have them, to reconsider certain doctrines that judges have sometimes used to withhold enforcement of constitutional promises.  I delve into the history of these states' constitutions and find some really fun and interesting things.

You can read the current draft of my article here.

Here are the other articles in the series: 

The Eminent Domain Clauses of the Washington and Arizona Constitutions (forthcoming in NYU Journal of Law & Liberty)

The Origins of the Arizona Gift Clause (Regent University Law Review)

The Arizona Gift Clause in the 21st Century (Drexel Law Review)

The Arizona "Private Affairs" Clause (Arizona Law Journal)

Talking with Armstrong & Getty about the Supreme Court and the homelessness problem

I joined Amstrong and Getty today--well, actually, just Armstrong--to discuss the upcoming Supreme Court decision about homelessness. But we kinda got distracted by my pet peeve: people who complain about the Supreme Court without actually reading their decisions. And that left us with only a little time to discuss the Phoenix homelessness case. Still, we had a good time, and you can, too, by listening here:

The "new" Mark Twain book

In The Objective Standard, I take a look at a new book by Mark Twain. That's almost literally true; this edition of Pudd'nhead Wilson is the original version that Twain radically altered before publication:

what’s remarkable about Pudd’nhead Wilson is that it is still quite enjoyable. Twain’s skill at prose and wordplay, his masterful handling of dialogue, and his comedic timing were so extraordinary that the novel remains entertaining, suspenseful, and at least partly effective in its denunciation of racism. That effectiveness is somewhat improved by this restored version, because the reader can first enjoy the never-before-published original, with the farce and drama blended, and then compare it to Twain’s published version. What’s more, the editors’ meticulous scholarship—tracking down even the minutest differences between the various manuscripts and explaining Twain’s sometimes obscure references with detailed endnotes—add to the enjoyment. (For example, one character refers to Angelo and Luigi as “that phillipene! [sic]”; the note explains that “phillipene” was a 19th-century slang term for a nut with two kernels, such as a peanut.)

Particularly entertaining is the editors’ account of the difficulties Twain encountered getting the book into print. Not only did he wrestle with two different plots, but his European and American publishers’ nitpicking caused him frequent headaches....

Read the rest...

David Boaz, RIP

I owe a lot to David Boaz, the VP of Cato who died today, just shy of 71. I was only 29 when he invited me to write a book that Cato published—and, in fact, to do it in less than six months, even though I’d never written a book before, and had no idea what it entailed. That was an extraordinary mark of confidence on his part. Especially because I don’t think I was ever exactly his favorite person; we differed about some things—well, just foreign policy, really—and I always got the sense that my outspokenness bothered him.

I had first met him when I was 22, fresh out of college and full of excitement for libertarian ideas (and he was younger than I am now). So it was only much later that I came to appreciate that his hesitation toward me was actually a manifestation of one of his strongest virtues: he wanted a libertarianism that was accountable, honest, and thoughtful—one that deserved to prevail. And that made him naturally suspicious of my youthful brashness. (He was that rare reader who would come to me with a footnote in something I’d written and ask if I had really read that source? Yes, I had.) So while he held me at arm’s length when I was younger and louder than I am now, it wasn’t personal—it was that he knew that we will accomplish nothing if we resort to exaggeration or bluster to win an argument, and that it’s better even to lose a debate than to employ such tactics. He naturally feared that in my enthusiasm, I might do the latter. (It was partly because of his influence that I, for example, began to maintain a public list of errata in my books.)

That was what made it matter to have his respect. That’s why, years later, when we became closer, and when he said some kind things about one of my books, it meant so much. I had earned his praise. It wasn’t just unconditionally handed out.

That discipline on his part is one of the chief reasons Cato is so respected today. The Institute’s detractors sometimes accused him of…well, what, exactly is hard to say—selling out? having too conservative a temperament? being excessively respectable?—and called him bizarre things like “court libertarian,” because he sought to reform the system in a pro-freedom direction, rather than denounce it, and accomplish nothing, for the sake of feeling oneself morally untainted. These accusations, or rather, this name-calling, was especially absurd given that he stuck to his libertarian principles; he was exceedingly proud of being one of the few signers of the National Review “Against Trump” manifesto who remained true to that commitment in the years that followed—vide his final tweet.

David Boaz is one of those who taught us how to responsibly promote radical ideas. In looking at the looming horizon, I think it's safe to say that our only hope lies in doing just that.

It’s increasingly feeling like the Adults in The Building are leaving us; the people we looked up to for wisdom and guidance are dying, retiring, or doing what Boaz didn’t do, and boarding the S.S. Trumptanic. It’s a chilling thought. But David himself would probably have seen it as an opportunity. He was a young man when he entered the freedom world, and in a sense, he was a pioneer: the first libertarian think tank in the world, FEE, was less than a decade older than he was himself! He and his colleagues had to build almost from scratch an intellectual landscape that we take for granted. He had, so to speak, only the gods to teach him—whereas we've been lucky enough to have rabbis—thanks in part to David Boaz.

We best do him honor, therefore, by heeding the lessons he worked all his life to teach: lessons not just about freedom itself, but about how to preserve and expand and proclaim it. That is what he would have advised: to take the extraordinary advantages that we've been given and move forward, to make the world a freer place than we found it. In fact, that is just what he did advise us, in his farewell speech, which you can watch here:

Good night, America, how are you?
I say, don't you know me? I'm your native son.
I'm the train they call The City of New Orleans.
I'll be gone 500 miles when the day is done.

The eminent domain clauses of the Washington and Arizona constitutions

I've signed a publication agreement with the NYU Journal of Law & Liberty to publish my new article on the origins of the eminent domain clauses of Washington’s and Arizona’s constitutions. Why these two? Because they’re identical: the Arizona framers in 1910 copied the language of Washington’s 1889 Constitution. And what makes these clauses special is the extraordinary degree to which they prevent the use of eminent domain for the benefit of private companies.

Employing ideas that were developed in the constitutions of Illinois, Ohio, California, and other states, the authors of the Washington and Arizona constitutions chose to incorporate four distinct protections against eminent domain: (1) an explicit “no private use” clause, which included a constitutional ban on judicial deference, (2) a requirement for compensation for “damaging” as well as taking property, (3) a rule requiring payment before a condemnation, not after, and (4) a prohibition on deducting from a compensation award the amount of “benefit” the owner allegedly received from the taking. You can read the current draft of my article on SSRN.

This is actually the latest in a series of articles I’ve been writing on the origin and meaning of interesting provisions in the Arizona Constitution. Check out also my article on the Private Affairs Clause and my articles on the past and present of the Gift Clause. I plan to write at least one, perhaps two more in this vein.