Freespace

Conclusion of the Greeks & the Founding Fathers

The new issue of The Objective Standard has the third and last of my pieces on the influence of the ancient Greeks and the American Founding Fathers. I was asked to prepare these for the Politismos Museum of Greek History, and I'm grateful for that invitation. This final installment discusses the Greek Revolution, the American Civil War, and the relationship between slavery, freedom, and national self-determination.

If you missed them, here are part 1 and part 2.

The tragedy in Indian Country

In the new issue of the Claremont Review of Books, I have a review of Naomi Riley's book The New Trail of Tears: How Washington is Destroying American Indians. You may recall that I interviewed Riley for a Federalist Society podcast some months ago (listen here), and I also interviewed her last month on the Armstrong and Getty show (listen here, beginning at about 09:30).

The Review's only available to subscribers for now, but here's an excerpt:

The word “crisis” hardly captures the dismal situation in Indian Country. Consider just one statistic: the leading cause of death for Indian boys ages 10 to 14 is suicide. In fact, suicide among Native American youths is more than twice the U.S. average, and in Canada, five to seven times the national average. Last April, eleven members of the Attawapiskat First Nation attempted suicide on a single day. Nine were children.... Unemployment on the Navajo Nation, which is more than twice the size of Massachusetts and home to 175,000 people, is 42%. The average per capita income is $7,269. On the San Carlos Apache reservation, it’s about half that....

Centralized planning on reservations stifles individual initiative, all but forbids construction, and offers still more government programs as virtually the only solution. It has, in the words of the Harvard Project on American Indian Economic Development, “maximized the politicization of investment and employment decisions.” That, in turn, maximizes the power of politicians at the expense of tribal citizens, whose only alternative is often the dole. The moral consequences are a crippling culture of anti-individualism and broken families. Nothing about this is unique to Indians. “The cultural problems on Indian reservations,” Riley concludes, “are really the results of economic and political circumstances that have been foisted upon Indians....

[R]ace-first collectivism isn’t shared by all Native Americans, but it’s common enough to sap the ambition of countless youth and to breed hopeless alienation. And such dogma isn’t just reactionary, it’s fundamentally racist. It classifies Natives as the property of tribal communes—just as imperialists and white supremacists regarded them in past ages—rather than as equal individuals in charge of their own destinies. Whether offered by Jacksonians in the 1830s or race-obsessed activists in 2016, it’s the same old serpent that says the pursuit of happiness is for other people.

Nothing today can undo the Sand Creek Massacre or the Trail of Tears. But it is within our power to open the door of opportunity for our fellow citizens. Doing so requires that they cease to be regarded as a separate people. “[Y]ou ask yourselves, ‘What do they, the Indians, want?’” wrote William Apess. “[Y]ou have only to look at the unjust laws made for them, and say, ‘They want what I want,’ in order to make men of them, good and wholesome citizens.”

Read the rest...

Permit freedom

In The Permission Society, I argue that permit requirements--whether they be building permits, business permits, gun permits, whatever--are a dangerous way to regulate society, that give bureaucrats tremendous powers over our lives. I argue that, at a minimum, whenever the government requires us to get a permit for something or other, we should have three basic procedural safeguards:

1. The criteria for getting the permit should be clear, not vaguely worded things like "good cause."
2. There should be a specific deadline within which you'll get an answer to your permit application.
3. There should be a real chance for judicial review--a day in court if the government wrongly denies you a permit.

These requirements were specified by the Supreme Court half a century ago, yet they're routinely ignored by government agencies that enforce vague permit criteria, delay and postpone their decisions, and require applicants to go through an administrative process instead of a real judicial hearing, which means that the rules of procedure and evidence that protect individual rights do not apply. 

In the Goldwater Institute's latest policy report, "Permit Freedom," I suggest how we can implement these safeguards and protect citizens against the dangers of permit requirements. You can read it here.

Arizona Supreme Court should strike down minimum wage law

The Arizona Supreme Court announced yesterday that it will hear the lawsuit that challenges the constitutionality of the state's new minimum wage law. The plaintiffs argue that it violates the rule under which any initiative that requires the state to spend more money must identify where the money is coming from. I argue in this article in the Arizona Capitol Times that the law also illegally gives special favors to unions by exempting employers that sign collective bargaining agreements.

Excerpt:

Minimum wage laws are laws against jobs. Last year, someone with little experience, who couldn’t compete against other job applicants, could have told a business owner, “hire me for $9 per hour, and let me work my way up to $12.” Prop. 206 makes that illegal....

True, some workers will benefit from Prop. 206. But those benefits come at the cost of people seeking jobs, who find opportunities reduced, and consumers who must pay more for goods and services they need....

Actually, supporters of Prop. 206 are counting on that. Hidden among its back pages is a special loophole that exempts union shops from meeting Prop. 206’s expensive time-off mandates. The reason is obvious: left to their own choices, fewer than 5% of Arizonans join unions. Union labor is often expensive and inefficient, and businesses offer plentiful benefits to non-union workers. By making life harder for non-union companies, and then exempting companies that sign a union contract, Prop. 206 forces non-union companies to cave in. It’s no surprise that unions were the initiative’s loudest backers.

Such political favoritism is a bad idea for a state that wants a dynamic and flourishing economy.

Read the rest...

Judge Gorsuch's natural law

Over at Reason, I take a look at the version of natural law theory that Judge Gorsuch embraces, and suggest one of the major ways it falls short.

When should government lawyers admit the government has broken the law?

Phoenix friends: I'll be joining Mike Bailey, Arizona Chief Deputy Attorney General, and former New Mexico Attorney General Hal Stratton on Feb. 23 for a conversation about the "Duty to Defend": when should government lawyers refuse to defend the constitutionality of the government's acts?

Given Pres. Trump's recent firing of acting Attorney General Sally Yates, the topic is certainly a hot one, and we're bound to have a controversial and interesting conversation. You don't have to be a Federalist Society member to participate. Join us!

Grandstand if your stand is grand

Couple days ago, I talked with Armstrong and Getty about the whole firing-the-acting-Attorney-General thing. If you missed it, you can listen here.

Talking with Armstrong and Getty about the Gorsuch nomination

This morning I talked with Armstrong and Getty about the nomination of Judge Neil Gorsuch to the Supreme Court. If you missed it, you can listen here.

Here is the Gorsuch opinion about "Chevron deference." Good part is toward the back.

I mentioned that Judge Gorsuch has a degree in philosophy from Oxford, where he studied under John Finnis. You can learn more about Finnis and his views of natural law here. I have my differences with Finnis, particularly the notion of "basic goods," and you can get a hint of that disagreement in this review of a book by Hadley Arkes (who's also in the Finnis camp).

My article on the political philosophy of Star Trek was mentioned, and it's here.

Update: Let me add: why is it important that Judge Gorsuch is a good writer? Naive as it might seem in today's political world, our legal and political institutions rest ultimately on deliberation, argument, and persuasion. That is just as true of a Supreme Court decision as of anything else. More true, in fact, because the Supreme Court acts through its orders and opinions. A persuasive Supreme Court opinion is critical to the long-term success of any ideological or political mission. If justices fail to write persuasively and clearly, their work will lose support and ultimately be forgotten. That is why the great writers on the Court, like John Marshall, Oliver Wendell Holmes, Robert Jackson, and Antonin Scalia have had influence sometimes out of proportion to the actual merits of their arguments. (Other justices, including my favorite, Stephen Field, have not always been up to that mark, and their influence has sometimes been muffled as a consequence. Field could write well at times, but he was no Holmes. Consequently, the fact that he was a thousand times the legal thinker Holmes was, the latter gets far more renown today.) Justice Scalia was at times sloppy and over-the-top in his opinions. I'm hopeful his successor will be more on target.