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Following up on American Indian Law Review cancellation

For those of you following the story of my attempted "cancellation" by the American Indian Law Review, I got an email today from the student editor saying that they were "prepared to publish" the article after all, but providing a "list of revisions" that would have to be done, first. Among the most bizarre: "Part I of the article is dedicated largely to the biological classification [in ICWA]. However, Morton v. Mancari, U.S. v. Antelope, Rice v. Cayetano, and U.S. v. Sandoval..." etc., etc. But as you can see by just looking at the article, Part I of the article is not devoted at all to the biological classification in ICWA! That part gives a brief overview of how ICWA works, preparatory to my discussion of federalism (the subject of the article) and while it references the biological classification in a couple sentences, I actually use a different phrase, not "biological classification," precisely because that is not the subject of the article or of this section of the article.

Honestly, for a moment, I wondered if perhaps the students had somehow confused this article with a different article I wrote that is on the subject of the biological classification, and which is scheduled for publication in a different journal...

Anyway, I told them no, at this point I'm sticking with the Texas Review of Law & Politics.

I'm grateful, however, to the dean and the academic advisor for taking this matter seriously and persuading the students to acknowledge that they are bound by the publication agreement.

Stone soup for Originalists

Today at Discourse, I review Randy Barnett's and Evan Bernick's new book The Original Meaning of the Fourteenth Amendment. Of course, I think very highly of both of them, and of their book, which I think is just about all correct...except for one big thing: I don't think it's "Originalist" at all. And that's a good thing. Excerpt:

Their transition away from originalism occurs early in the book when they distinguish between “interpretation” and “construction.” Interpretation seeks the meaning of written words, but construction means finding ways to apply a law’s meaning “when the text runs out”—which “necessarily takes place every time constitutional text is given legal effect.” But if originalism is a theory for interpreting texts, then construction is simply beyond its reach. Instead, construction must depend on some other kind of argument than those that seek to discern the source of linguistic meaning. And that means judges rely on principles other than originalism’s central premise “every time the constitutional text is given legal effect.”

In addressing this point, [Lawrence] Solum has argued that “an originalist approach to the construction zone must be consistent with the normative justifications offered for the Constraint Principle”—which is the principle holding that “constitutional practice should be constrained by that communicative content of … the text.” But those normative justifications cannot be derived from originalism without begging the question. Rather, they are broader propositions about the proper scope of government, the nature of the rule of law, or other principles of political legitimacy.

And that means that when we engage in construction—which is “every time the Constitution is given effect”—we appeal not to a theory about how language means things, but instead to normative precepts of ethics and politics that stand outside originalism’s semantic claims. In other words, we toss away the stone of originalism—and serve up a nourishing philosophical soup in its place.

Read the rest...

Why juries matter

In my latest article for Discourse, I discuss the importance of the jury trial—a principle that some on the left attacked in the wake of the Kyle Rittenhouse trial. Excerpt:

The jury system is meant to be a miniature version of the community—a representative sample of society—and its responsibilities go beyond simply adjudicating the guilt of defendants. It is also responsible for supervising the judicial system itself. Like all human institutions, it is flawed and subject to abuse—but, as Churchill said of democracy, it is the worst except for all the other systems that have been tried.

(Read the rest…)

Louis Sullivan’s Idea

My latest review for The Objective Standard is of a lovely new book on the art and architecture of Louis Sullivan. Excerpt:

On the night the Chicago Auditorium was dedicated in 1889, none of the dignitaries who spoke to the overflow crowd—which included the president and vice president of the United States—mentioned its architect, thirty-three-year-old Louis H. Sullivan. The ornate theater was an astounding feat of technical ingenuity and innovative design that remains one of Chicago’s most celebrated landmarks. Yet Sullivan is said to have spent the evening in the building’s barroom by himself.

It’s a fitting image of a man who was one of America’s greatest builders but who, only a few years later, found himself forgotten, and whose refusal to compromise his designs helped drive him into poverty. Fortunately, Tim Samuelson and Chris Ware have produced this hefty monograph to help preserve his work and encourage a new generation’s interest in a man justly considered the father of the skyscraper.

(Read the rest…)

December Substack newsletter

Here's this month's issue of my Substack newsletter. Make sure to subscribe!

American Indian Law Review tries to cancel me

Last April, my article “The Federalism Problems with the Indian Child Welfare Act” was accepted for publication by the American Indian Law Review, and we signed a publication agreement in May. I was a little surprised that AILR accepted the article, since the unconstitutionality of the Act is kind of a third rail among the Indian law community, but I thought, Good for them!—open to rational debate!

But no. On November 23, I received an email from the editor-in-chief of the AILR, saying that “there are significant issues that emerged with your article that have raised concerns with the Board of AILR. After long deliberation and careful thought, the Board has determined that it is in the best interest of the journal to withhold publication of your article.”

I responded with an email asking her to identify these “significant issues,” and explain why they would require the spiking of the entire article. After all, the publication contract AILR signed (which you can read here) does not permit them to withhold publication based on unspecified “significant issues.” Instead, it lists six bases on which the AILR can withhold publication (things like plagiarism or refusal to cooperate with the editing process), none of which apply.

But here is what she said in response to my inquiry about “significant issues.” Of course, you need only look at the article itself to see how dishonest this is. I discuss the “plenary power doctrine,” on pages 9 through 20. She says I “ignore” the Indian Commerce Clause precedent, but I discuss that in detail on pages 9-14 and 22-25. She says I “disregard the common law tools that the Court has used for two centuries to find that the Federal Government has exclusive authority over Native American persons and property,” but that is a lie, because the entire article engages with those common law tools, and uses them to argue that they do not warrant the intrusions on federalism imposed by the Indian Child Welfare Act. She says that "the Court has explicitly stated that 'Indian' is not a racial category, but instead a political classification," but I don't say otherwise; in fact I don't discuss that at all because this article is about federalism, not race. In fact, I use the word "racial" only once, on page 2, where I say that this article doesn't address that question but focuses on federalism, instead.

One might wonder, if the article actually had “research deficiencies,” why did the AILR accept the article and sign the publication contract to begin with? I have made no changes to it since the publication agreement was signed, so it is not possible for any “deficiencies” to have been “unanticipated.”

The answer is simple: there are no such deficiencies. Rather, the student editors have chosen to breach their contract with me because they don’t like what I say. They are attempting to characterize their political objections as “research deficiencies,” in order to give cover to this childish intellectual dishonesty.

The AILR claims on its website to be “a nationwide scholarly forum for analysis of developments in legal issues pertaining to Native Americans and indigenous peoples worldwide.” This incident makes clear that that is not true: the AILR is instead a partisan journal that will refuse to publish viewpoints the editors don't like, even if that requires them to breach their contracts.

Fortunately, this effort at cancelling me has failed. The Texas Review of Law and Politics has stepped in, and we’ve signed an agreement to publish the paper in its Spring 2022 issue, so there will be no delay in getting the paper out. And, boy, am I looking forward to the “Author’s Note” that I will now append to it....

Update 12/22/21: More here.

Don't pack what ain't broke

I have an article in Discourse this morning on why schemes to pack the Supreme Court, or to limit its jurisdiction, are misguided. Excerpt:

Efforts to restrict the courts are typically advanced by those who dislike how judges have decided things, rather than by those actually interested in improving the judiciary. The real targets of such proposals, moreover, are usually unpopular groups or individuals whom the courts have acted to protect. Since judges are charged with defending the freedoms of those whom elected officials have unjustly targeted in some way—out-of-state creditors in the Chisholm case, or business and property owners during the New Deal—proposals by outraged lawmakers to rein in the judiciary are usually just attempts to make it easier to exploit and persecute those whom the courts have dared to defend.

Read the rest...