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Here's the cover of my new book

My book, The Ascent of Jacob Bronowski: The Life & Ideas of a Popular Science Icon is scheduled for release in March. (Already available for preorder on Amazon!) The publisher, Prometheus Books, has finished the cover: here's what it will look like.

The Arizona "Private Affairs" Clause

I've signed the agreement to publish my article "The Arizona 'Private Affairs' Clause: Time for a Second Look" in the Arizona State Law Journal.

The Real Lolita

This book is part of what seems like a growing genre of grievance-inflected efforts at “deconstructing” works in ways that vaguely suggest wrongdoing in the original in order to reinforce preconceived notions of victim-status without bringing us anything enlightening or new. I first noticed this phenomenon in the undeservedly celebrated The Immortal Life of Henrietta Lacks, which approaches making the argument that Lacks was somehow exploited by the process of harvesting and using her cells for research, even though her rights were never violated, and her family has no just claim to any profits from that work. Immortal Life was certainly an interesting story, and well told, but it overreached itself in its effort to find some sort of exploitation going on at the heart of genetic research. A similar thing is going on in Sarah Weinman's The Real Lolita.

Lest I be misunderstood, I’m not claiming that Sally Horner or the character Dolores Haze aren’t victims and weren’t exploited. Obviously they were. But Sarah Weinman isn’t content to address that; no. She tries in this book to make the argument—well, the insinuation, really; she never makes the actual argument—that Nabokov...plagiarized? stole? misrepresented? the real-life story of Sally Horner, who was kidnapped and kept for nearly two years by a man who raped her and pretended to others that she was his daughter.

Recent revelopments in Indian Child Welfare Act litigation

I've signed the publication agreement to publish my article "Recent Developments in Indian Child Welfare Act Litigation: Moving toward Equal Protection?" in the Texas Review of Law & Politics.

Frederick Douglass was a radical for individualism

The new issue of National Review has my review of David Blight's biography of Frederick Douglass. Excerpt:

At nearly 900 pages of text, David Blight’s new Douglass book aims to be comprehensive, and it does cover a lot. It even draws on a previously unknown collection of Douglass material. Yet for all its thoroughness, it provides few new insights and lacks serious analysis of Douglass’s ideas. Blight spends little time discussing Douglass’s controversial interpretation of the Constitution as an antislavery document, for example, and no time at all examining his religious beliefs, beyond pointing out every single time that he borrowed from the Old Testament for rhetorical purposes — or so it begins to seem. Indeed, Blight seems to assume that Douglass was devoutly religious, when the reality is that Douglass relinquished his youthful piety in his forties, in preference for a vague, pragmatic spiritualism — although he never ceased to quote the Bible on which he was raised. Those quotations were almost always literary rather than dogmatic, and when he discussed religion directly, he rejected the idea that faith can change the universe as being “manifestly . . . in contradiction to sound reason.” “It does not appear,” he said, “that divine power is ever exerted to remove any evil from the world, how great soever it may be.” Douglass was influenced as much by Shakespeare, Hugo, and Dumas as by the Bible, but Blight never discusses them.

More jarring is Blight’s depiction of Douglass as driven by “fantasies of revenge” during the Civil War. He claims that Douglass “yearned” for the “sanctioned killing of slaveholders,” and repeatedly uses words such as “bloodthirsty” to describe him. It’s true that Douglass endorsed violent slave resistance, lionized John Brown, cheered on the Union Army, and strove to enlist black soldiers in its ranks when the war came, but it’s simply false to describe his motivation as “bloodlust” or “vengeance.” Douglass desired the liberation of slaves, not death and destruction, and if the former could have been accomplished without the latter, he would have welcomed it. Moreover, this description of Douglass’s motives contradicts Blight’s later detailing of his subject’s sometimes provocative efforts to meet his former owners on a gentlemanly footing. In 1877 and 1882, he visited the families who had owned him, on terms so amicable that newspapers printed false rumors that he had begged them to forgive him for running away. These aren’t the actions of a man lusting for revenge.

Read the rest...

New review of my Frederick Douglass book

George H. Smith, whose writing I much admire, has published a review of Frederick Douglass: Self-Made Man at Libertarianism.org. I do have one quibble: I do briefly mention Douglass’s belief in prohibition of alcohol in the book, although I think historical evidence that Douglass actually supported prohibition is dubious.

More on the West Virginia craziness

Yesterday I explained why the West Virginia Supreme Court’s impeachment ruling is unconvincing. That decision says that:

a) The West Virginia Constitution’s section on impeachment twice uses the phrase “according to law”;

b) Courts have jurisdiction to determine “the law” and the West Virginia Constitution allows people who have suffered a legal injury to seek protection from the courts;

c) Therefore, the courts have jurisdiction to enjoin an impeachment proceeding that in the court’s view are not following the law;

d) The proceedings aren’t following the law because the basis for the impeachment is violation of the state’s Code of Judicial Conduct.

This is wrong because:

1. The West Virginia Constitution also says the legislature shall have the “sole power” of impeachment—which the court’s opinion entirely ignores;
2. Impeachment has been, from time immemorial, been wholly a legislative matter, in which courts have virtually no authority;
3. The phrase “according to law” refers in one instance only to the oath Senators may take, and oaths of that sort are typically not enforceable in courts, and in the other instance it refers only to what happens after an impeachment, not during;
4. The provision of the constitution allowing people to seek protection from courts applies to those who’ve suffered an injury to person, property, or reputation, and that doesn’t apply to an impeachment, which isn’t any of those;
5. Even if the court is right about everything else, the impeachment is still proper because the reference to the Code of Judicial Conduct is only one part of a long list of reasons for impeachment—reasons that add up to malfeasance, so that even if you deleted the reference to the Code of Judicial Conduct, the impeachment for malfeasance could still proceed—and the Court should, at a minimum, have limited itself to deleting the reference to the Code of Conduct, and then still allowed the impeachment to go forward.

Here I want to look at the precedents the court cites. As I mentioned, this is an unprecedented situation, so these prior cases aren’t much help to either side, but here goes:

West Virginia’s fascinating constitutional crisis

As interesting, complex, and important as are the constitutional issues that reach the U.S. Supreme Court, there are far more at the state level. But never in American history has there been a constitutional conundrum quite like what’s going on in West Virginia right now.

Last month, the West Virginia legislature voted to impeach the entire state Supreme Court on the grounds that they misappropriated state funds in various ways. That was startling enough. But then the West Virginia Supreme Court itself decided to fight back. That’s not a new thing in West Virginia—in 1997, the State Supreme Court ruled in a dispute over parking spaces for court personnel that “courts have inherent authority to require resources such as sufficient funds for operating expenses,” and therefore that county judges could override state budgetary restrictions. But this time, the Court went much further. It issued a unanimous decision* (written by substitute justices, since the justices themselves are being impeached and had to recuse themselves), holding that the state legislature has no authority to impeach under these circumstances.

First question: does the state Supreme Court have jurisdiction over impeachments? Impeachment is different from a criminal trial, because it’s a political, rather than a legal, proceeding, and it doesn’t impose criminal penalties; it just removes a person from office. That’s normally considered an exclusively legislative matter, in which the courts have no say. But the West Virginia Supreme Court decided otherwise. Here’s their reasoning:

New working papers: the Arizona "Private Affairs" Clause and recent developments in ICWA litigation

I've posted to SSRN the latest drafts of two papers I'm working on: The Arizona Private Affairs Clause: Time for a Second Look, and Recent Developments in Indian Child Welfare Act Litigation: Inching Towards Equal Protection? 

I've also recently signed the publication agreement to publish my article, Rebuilding the Fourteenth Amendment in the New York University Journal of Law & Liberty.