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No, Chief Justice Roberts, impeachment is one legitimate response to a judge’s incorrect rulings

Chief Justice John Roberts took the unusual step this week of issuing a statement rebuking the Trump Administration for statements saying that judges who rule against him should be impeached (or, in his inimitable style, “IMPEACHED!!!”). Roberts replied that “[f]or more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

But this is not really correct. It’s true, of course, that the normal appellate process is the first step if you believe a trial judge has reached an incorrect conclusion. But it does not logically follow from that that impeachment is not an appropriate response to disagreement with a judge. On the contrary, a judge reaching legally incorrect decisions is a legitimate ground for impeachment of any judge.

Certainly nothing in the Constitution places incorrect rulings outside the category of circumstances that can warrant impeachment. On the contrary, its wording suggests otherwise. It says judges hold their offices “during good behavior,” and it is obvious that a judicial decision that is particularly bad, or repeated decisions that are bad enough, constitute bad judicial behavior. It seems obvious that Chief Justice Taney’s decision in Dred Scott would have warranted impeachment (but for the fact that Congress was then too beholden to the Slave Power). And it is easy to imagine worse examples. Suppose a judge issued an order declaring Jews to be traitors, or declaring that the state of Maine belongs to Canada. Would he not impeachable?

It is no answer to say that these are examples of delusion. The difference between “delusion” and “legally incorrect decisions” is only a matter of degree. Is delusion “bad behavior”? Yes—because it is an abuse of trust for a person to remain in office when he or she is incompetent, and delusion is a species of incompetence. But legally incorrect decisions are, in principle, a form of incompetence, too.

What if a judge just never showed up for work? Moved to Bermuda or something? But legally incorrect rulings are not, in principle, different from a judge simply not showing up for work. In fact, legally incorrect rulings are far worse than a judge not showing up, since they set bad precedent, inflict injustices, and at a minimum, take time and money to obtain an appellate reversal.

What about Originalism? Justice Roberts’ reference to “two centuries” during which it has been “established” that impeachment is an improper step is a reference to the cases of John Pickering and Salmon Chase, both targeted for impeachment by the Republicans in the Jefferson Administration. Congress removed Pickering—who was literally insane—but not Chase. What did this “establish”? To the Originalist, the answer must be: absolutely nothing. Senators vote for things for various reasons, and it establishes no legal precedent regarding constitutional meaning. Even if you’re not an Originalist, this establishes nothing. The removal of Pickering was along strict party lines—the Federalists all opposed removal, despite his literal incapacity—which proves that the Senate’s decision in these two cases was partisan, not based on some deep insight into the proper grounds for impeachment and removal.

In fact, we know what the Originalist answer is.

God and the Declaration of Independence

I had the pleasure of speaking at the Utah Valley University Center for Constitutional Studies' symposium on the Declaration of Independence yesterday, to discuss the relationship between the Declaration and religion. On the panel with me were Prof. Owen Anderson of ASU and Dr. Bradford Wilson, currently at UVU. It turned out to be a very fun discussion. You can watch it here:

A stone for Isabel Paterson's grave

I'm pleased announce that a stone has at last been placed on the grave of Isabel Paterson, the novelist, columnist, and economist who was such an enormous influence on libertarianism; mentor to Rose Wilder Lane, Ayn Rand, and John Chamberlain, and in her day one of the most important literary intellectuals in America. She died in obscurity in 1961, while living with her friends the Hall family, and was buried at St. Mary's Episcopal Church in Burlington, New Jersey. But no stone was ever placed on her grave.

A couple years ago, I began a discussion with Stephen Cox, Paterson's biographer, about placing a stone on the site. I had found a donor willing to pay for it, even. Cox knew members of the Hall family, whose permission was necessary. But his correspondence with them, which I wasn't privy to, took a while. Eventually, I contacted him again, and he said that he had decided that he would like to arrange to have the stone placed himself. I said that was fine with me... and then, not long afterwards, Cox himself died, rather suddenly. 

I feared he had not managed to have the stone arrangements made, so I contacted St. Mary's, and I'm glad to say that Prof. Cox did manage to complete the arrangements, and the stone is now in place. It's a modest one, just as Paterson would have liked it, and bears the apt inscription "Proclaim liberty throughout the land," a reference both to the book of Proverbs and to the Liberty Bell (and, as it happens, the epigraph of my forthcoming book).

In a sense, the stone is therefore a monument to two people: the great Paterson, of course, and also to Prof. Cox, who managed as one of his final acts to pay homage to this brilliant and fascinating lady of liberty.

 

Two new books coming

I'm delighted to announce that I've signed publication agreements for not one, but two new books to come soon. The first, You Don't Own Me: Individualism and the Culture of Liberty will examine, well, the role of individualism in culture, particularly but not exclusively, American culture. It should be published by the end of this year. And in Proclaiming Liberty, scheduled for publication next year, I look at the history and meaning of the Declaration of Independence. Can't want for you to see them!

Level Up 2025--see you in Ontario!

Looking forward to speaking at Level Up (formerly TOS-Con) in Orlando, Florida in July. I'll be speaking about the life and achievements--and tragic failures--of the great dancer, singer, and civil rights pioneer Sammy Davis, Jr., whose centenary we celebrate this year. Please join us!

Laurel, a ghazal

I have a new poem in Ekphrastic Review.

The Declaration of Independence and religious liberty

I'll be speaking at the Utah Valley University's conference "A Revolution in Religious Freedom: From the Declaration to the First Amendment," on March 6. I'll be talking about the philosophical and theological claims of the Declaration of Independence. 

What I read in 2024 and what I thought of it

Best book I read this year:

1. Challenger by Alan Higginbotham*

I reviewed this fine book for The Objective Standard.

Honorable Mentions:

2. Disney's Land by Richard Snow*

An extremely interesting and entertaining history of the construction of Disneyland. A much more interesting story than I had known.

3. American Scripture by Pauline Maier

One of those books I've "read in" many times but never actually read cover to cover. While I sharply disagree with Maier on some important points, there's no denying that this is one of the best works of scholarship on the Declaration of Independence ever written, and a must-read for students of the Revolution.

4. Pops by Terry Teachout

A very interesting and enjoyable biography of Louis Armstrong. Recommended!

5-8. The Constitutional History of the American Revolution (4 vols.) by John Phillip Reid

Amazingly well-researched, a phenomenal piece of scholarship. Reid is wrong in excessively downplaying the role of natural law thinking in the Revolution, but he must absolutely right about the constitutional crisis that led up to independence, and his grasp of these debates is incredible. An absolute must-read for students of the revolution.

Best new discovery:

Gadding happily with Gad Saad about Frederick Douglass, wokeness, and other things

I spoke yesterday with Gad Saad about my book on Frederick Douglass, as well as the problems of wokeness, and various other issues. You can watch our conversation here:

A couple notes: first, I got Nikole Hannah-Jones's name wrong; I referred to her as Hannah Nikole-Jones. While I have little respect for Nikole-Jones's work, I did not mean this as an insult, it was just faulty memory. Second, I erred when speaking of the Importation (of slaves) Clause of the Constitution; I said it could not be altered until 1800, when the actual date was 1808.

Third, I mentioned a poem by Vatchel Lindsay. The poem is "The Leaden-Eyed." It goes:

Let not young souls be smothered out before
They do quaint deeds and fully flaunt their pride.
It is the world's one crime its babes grow dull,
Its poor are ox-like, limp and leaden-eyed.
Not that they starve; but starve so dreamlessly,
Not that they sow, but that they seldom reap,
Not that they serve, but have no gods to serve,
Not that they die, but that they die like sheep.

Talking about homelessness and other government-created problems with A&G

I joined my friends Armstrong & Getty this morning to talk about the success of Arizona's Prop. 312, which says that if the government refuses to enforce laws against public camping or similar kinds of public nuisances, and you're forced to protect yourself by installing iron bars or installing security cameras, etc., you get to write the cost of that off of your taxes. I stuck around to talk about a couple other things, including The Most Important Thing You Can Know About Government. If you missed it, you can listen here:

 

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…