Freespace

Rexford Tugwell on the New Deal's unconstitutionality

This is the article (from The Center magazine, March 1968), in which Brain Truster Rexford Tugwell admits that Supreme Court decisions upholding New Deal programs were "tortured interpretations of a document intended to prevent them... It really had to be admitted that [the New Deal] was done irregularly and according to doctrines the Framers would have rejected.... Much of the lagging and reluctance [toward government change in the 1930s] was owed to constantly reiterated declarations that what was being done was in pursuit of the aims embodied in the Constitution of 1787 when obviously it was in contravention of them." 

I see this passage quoted in much libertarian literature, but rarely cited to the original source, which is not available online anywhere, so I thought it would be handy to upload it.

My review of Louis Menand's new book, The Free World: Art and Thought in the Cold War

...is now available at The Objective Standard's page. I'm a huge fan of Menand's previous books, The Metaphysical Club and American Studies. But I'm afraid his latest, while an interesting and entertaining read, gives a remarkably limited perspective. It's less about art and thought in the Cold War than about particular cultural endeavors that Menand finds interesting. Excerpt:

There were people who warned at the time that viewing the world this way could turn ugly because, unmoored by reason, an ego in search of “authentic” experience—whether through rebellion or conformity—would only find annihilation. But Menand never takes time to engage these critics. He quotes a columnist who accurately called Bonnie and Clyde “strangely antique sentimental claptrap,” but instead of examining this review, he brushes it aside as narrow-minded. He likewise slights writer Diana Trilling for calling Ginsberg and other Beat poets “miserable children trying desperately to manage, asking desperately to be taken out of it all.” But Trilling had a point. Their “disreputableness and rebellion” was a “front,” she wrote, and their work—which sought to “generalize their despair though of course without curing it”—was an attempt to conceal the fact that they were actually “docile to culture.” They portrayed themselves as victims of “the Establishment,” when in fact they were simultaneously surrendering to it and begging for its approval. Menand, however, doesn’t quote these parts of Trilling’s essay.

Read the rest...

The unconstitutionality of the Indian Child Welfare Act

My article "The Unconstitutionality of the Indian Child Welfare Act" (forthcoming in the Texas Review of Law and Politics) is posted on SSRN and you can download it here.It includes a discussion of last week's 300+ pages of opinions in the Brackeen case.

The past and future of donor privacy

In the latest episode of the Bloomberg Law podcast Cases and Controversies, I talk with Supreme Court reporter Kimberly Robinson about the upcoming case involving the rights of donors to keep their personal information confidential (Americans for Prosperity and Thomas More Law Center v. Rodriguez.)