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The 2012 Freebie Awards

And the Freebie goes to...

Best book I read this year:

1. Longfellow Redux by Christopher Irmscher

For the longest time, I, like so many of you, was prejudiced against Longfellow. But Irmscher's interesting and lively book really made me reconsider and appreciate what HWL accomplished. It's time that Americans threw off the sophomoric hostility to him and regained their appreciation for an artist who succeeded not only in speaking to the diverse population of 19th Century America, but to all the generations since. He's certainly the anti-Whitman, but you can appreciate them both, and Irmscher's book is a great first step in doing so.

Best new discovery:

2. Olives by A.E. Stallings

3. Archaic Smile by A.E. Stallings

4. Hapax by A.E. Stallings

Stallings restores my faith in contemporary poets. Clever, insightful, passionate and thoughtful, a first-rate artist. Very, very highly recommended.

Best audio book this year:

The difference between Les Miserables and Star Trek

Interview with Tom Hooper, director of Les Miserables:

Question: You used the original book in helping you craft this.

Hooper: It’s what I used for inspiration—it’s a truly brilliant work. One of the things I got from it was a great line: “It was the second white apparition which he had encountered.” The first taught him virtue, the second taught about love.

Interview with J.J. Abrams, destroyer of Star Trek:

"Star Trek," he says, referring to the original TV series, "always felt like a silly, campy thing. I remember appreciating it, but feeling like I didn't get it. I felt it didn't give me a way in. There was a captain, there was this first officer, they were talking a lot about adventures and not having them as much as I would've liked. Maybe I wasn't smart enough, maybe I wasn't old enough.... I had no idea there had been 10 movies! I still haven't seen them all. I didn't want to become a student of Star Trek. I felt that was actually one of the few advantages I had. I was trying to make a movie, not trying to make a Trek movie."

Maybe if you have no respect for your material, you shouldn't be making the movie.

Friday foto

So...in other words, not everything.
(Is that the smallest small-print you ever saw? Click to enlarge)

If you're in Seattle this week

...check out the SR-71 tip-to-tail tour.

So it's a tax...now what?

My article, "So It's A Tax...Now What? Some of The Problems Remaining After NFIB v. Sebelius," has been accepted by the Texas Review of Law & Politics. You can download the current draft here. In it, I argue that the Individual Mandate, interpreted as a tax, violates the Uniformity, Apportionment, and Origination Clauses of the Constitution.

Of course....

This is still hilarious.

Les Miserables

The new Les Miserables is a breathtaking achievement. It captures the full sweep and grandeur of Hugo’s novel. It convincingly translates a production originally written for the stage into a motion-picture production (often a hard thing to do). The directing is brilliant—a perfect combination of realism and romanticism that gives real life to Hugo’s message. And the performances are stunning. It would be an injustice if Anne Hathaway does not get the Oscar for her performance as Fantine. Her “I Dreamed A Dream” is one of the most amazing things I have ever seen in any movie, ever. No, the movie isn’t perfect—Russell Crowe’s singing is a bit weak (though his acting is fine) and there are some scenes that do not quite succeed (Marius’ return home is very short and hard to follow). But the flaws are miniscule in a film that otherwise is positively stunning.

Les Miserables is one of the greatest achievements of nineteenth century romantic literature, which means, a literature about values and moral choices. It is about whether people can change, about what it means to remain loyal to your values in the face of overwhelming odds, about what it means to redeem yourself after you and your forefathers have committed terrible wrongs. It’s a novel about the interactions of justice and mercy, about revolution and transcending your past. It is one of the great masterpieces of a kind of art rarely seen today—an art that takes values seriously, and in which the characters take themselves and their ideas seriously. The musical, and this film, manage to convey that kind of idealism without a trace of the sarcasm, self-deprecation, shrugging, or ridicule that is typical of today’s films. It believes in itself in the way that each of us ought to believe in ourselves, and that, when we work hard enough, we sometimes manage to deserve. It has not learned the skill of derogating its own highest values.

Unsurprisingly, the critics—all much too sophisticated to believe in things—are falling all over themselves to sneer and roll their eyes. The Huffington Post’s critic, who has never read the novel and proudly declares that he won’t, calls it “the kind of middlebrow melodrama that passes for profound on Broadway.” He never quite tells us why a story about the most important parts of living—one’s dedication to those high values that make life worthwhile—is anything short of profound. He just ridicules the “wrung out” feeling the audience experiences as being “the point.” I guess that’s his way of saying that we should not take things like admiration, longing, joy, love, and redemption too seriously. The Arizona Republic’s reviewer is even more snide. He at least recognizes that the story is one of “humanity and depravity” and “law and its trickier cousin, justice.” But...well, that’s fine if you go for that sort of thing. “How much you enjoy the film is going to depend greatly on your capacity for having these ideas pounded against your head, time and again.” Notice that the alleged flaw in the film is that it is about truly crucial values, and treats them as crucial. I guess we’re supposed to prefer small, petty, and pointless, to enormous, idealistic, and important.

Hugo is not dated today because there is nothing so radical as the art of ideas, an art that contemporary intellectuals do their best to shove under the couch. In a world where critics praise the trivial, the bizarre, the nihilistic, the anti-life, the plainly stupid, I am happy to cast my lot in with the movie-goers who still know how to cry at tragedy and celebrate triumph.

I suppose there will always be people who can bring themselves to scoff, for whatever reason, at the profundity and seriousness of Les Miserables. But to do so in the face of these performances is especially shameful. Hathaway’s Fantine is something like I have never seen in a film. There are just no words for it. And when artists like Victor Hugo, Claude-Michel Schönberg, Tom Hooper, and Anne Hathaway are able to express the universal human commitments that the audience members rightly take with such seriousness—to give those values a voice and an expression that will stay with them for the rest of their lives—which people will leave the theater thinking about for days and years afterwards—when a group of artists is able to personally touch the hearts of millions of people, for the right reasons, and to give them the gift of expressing something true and genuine and to make their hearts soar—that is what truly great art aspires to. And it is something that deserves our thanks and praise—not sneering by the ants too tiny to recognize the sculpture on the base of which they crawl.

To Hell with small critics with small ideas. This film is a superlative accomplishment. If “high brow” means to look down, I will stay with the “middle brows” who can still enjoy looking up. Hugo’s novel, and this faithful adaptation of it, are about the Most Important Things. Go see it.

The Cusp

Here was the brink of all they knew:
In the hollow sky and teeming blue,
All time and law, all mass and space,
All faith and reason terminates.
On rigid cliffs, obsessive waves
Mold the aeons out of days,
And crumble epochs into years.
Holistic oblivion; the boundless sphere
Of the sole and solipsistic sea
Dissolves us in eternity;
Where all is all and nothing’s else,
We find no bond with another self.

But then the kanaka crossed the strand,
Followed newfound stars to land,
Became the first to cleave in two
The unitary solitude
Of heaven. Knowledge has its start
In separating light from dark,
And waters from the firmaments
Where life is born in difference.
Meet on the beach to make again
That fathomless journey from if to when
Find the equator, and call once more
“Aloha!” to Janus waving on shore.

Neutral principles aren't the rights of man

In the latest post on the misnamed Liberty Law Blog, Prof. Rappaport praises anti-liberty thinker Robert Bork for his most anti-liberty effort: the search for "neutral principles" of constitutional law. "Neutral" means morally ambivalent, which ultimately meant for Bork, as inevitably it must, complete majoritarianism, even to the extent of allowing the majority to deprive each person of the rights of religious belief, sexual privacy, and so forth.

Whatever else one might say about such an effort, it was not "originalist" in any sense whatsoever. The framers never thought a Constitution could exist on a morally neutral framework. They articulated the moral goals of the Constitution in its very first line--speaking, among other things, of liberty as a "blessing"--and in the Declaration of Independence, a document Bork rejected in its entirety. That document speaks of universal principles, not neutral ones; indeed, it speaks of "truths," which it would be irrational and immoral to deny. The search of "neutral" principles instead of universal truths originated after WWII, when the moral relativism and collectivism of the preceding decades played out their ultimate, horrifying conclusion. But Pragmatists, unwilling to return to the true path, sought some substitute in "neutrality," and this was the effort Bork undertook.

That "neutrality" was fundamentally anti-individualistic and anti-liberty, because it presumed that the majority has a right to govern people, and to choose what privileges (rights) to give them. This idea, which Bork absurdly called "Madisonian," was in reality the exact opposite of Madison's view. Madison believed all people have basic rights on which the majority has no right to intrude; that majorities are authorized, not entitled, to rule, and then only in limited instances, within the boundaries of universal principles, including the basic rights of individuals. This requires moral commitments; it is not, and cannot be described as, neutral.

Bork rejected all of this, emphatically so. He took the Positivism and Pragmatism of Oliver Wendell Holmes and Alexander Bickel, and tried to stick a feather in its cap and call it Macaroni. That effort rightly failed. This was not a matter of pathbreakers making errors; on the contrary, Bork was an intellectually dishonest writer who said things he knew not to be true. He had to do so because, try as he might, he could not plausibly claim to be an originalist, and did not try to claim that he believed in liberty; the latter is the cause of the former. Bork reserved his hostility for the doctrine of individual rights--and that ruled out an originalism faithful to the work of founding fathers who believed deeply that all men are fundamentally endowed with such rights.

Update: Bernstein's comment to Prof. R's post is spot on.

Brewer right to say no to insurance exchange

Christina Sandefur has the scoop.