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Homelessness, Chevron deference, Armstrong, Getty, oh my

I joined Armstrong & Getty this morning to talk about the Supreme Court decisions in the homelessness case and the case about bureaucratic power. If you missed it, you can listen here.

Protecting taxpayers

I recently joined Richard Morrison on the Competitive Enterprise Institute’s show Free the Economy to talk about state constitutional “gift clauses,” which forbid government subsidies to private businesses. (I recently published a pair of law review articles about the origins of Arizona’s Gift Clause, and about how it’s interpreted today.) You can watch our discussion here:

The "Mandatory Clauses" of state constitutions

I've just signed a publication agreement with the Gonzaga Law Review to publish my article "The 'Mandatory' Clauses of State Constitutions." The article is the latest in a series I've been doing on the origins of interesting provisions of the Arizona Constitution--in this case, Article II Section 32, which says that everything in the Constitution is mandatory unless otherwise provided. That might seem like a weird thing to say in a constitution, because one might naturally assume that anything in a constitution is automatically mandatory. But thereby hangs a tale! It turns out that many nineteenth century courts did not think so. So constitution makers in California, Washington, North Dakota, South Carolina, Utah, and Arizona took steps to forbid "judicial restraint." And the legacy is the Mandatory Clauses, which, as I argue, require courts in those six states that have them, to reconsider certain doctrines that judges have sometimes used to withhold enforcement of constitutional promises.  I delve into the history of these states' constitutions and find some really fun and interesting things.

You can read the current draft of my article here.

Here are the other articles in the series: 

The Eminent Domain Clauses of the Washington and Arizona Constitutions (forthcoming in NYU Journal of Law & Liberty)

The Origins of the Arizona Gift Clause (Regent University Law Review)

The Arizona Gift Clause in the 21st Century (Drexel Law Review)

The Arizona "Private Affairs" Clause (Arizona Law Journal)

Talking with Armstrong & Getty about the Supreme Court and the homelessness problem

I joined Amstrong and Getty today--well, actually, just Armstrong--to discuss the upcoming Supreme Court decision about homelessness. But we kinda got distracted by my pet peeve: people who complain about the Supreme Court without actually reading their decisions. And that left us with only a little time to discuss the Phoenix homelessness case. Still, we had a good time, and you can, too, by listening here:

The "new" Mark Twain book

In The Objective Standard, I take a look at a new book by Mark Twain. That's almost literally true; this edition of Pudd'nhead Wilson is the original version that Twain radically altered before publication:

what’s remarkable about Pudd’nhead Wilson is that it is still quite enjoyable. Twain’s skill at prose and wordplay, his masterful handling of dialogue, and his comedic timing were so extraordinary that the novel remains entertaining, suspenseful, and at least partly effective in its denunciation of racism. That effectiveness is somewhat improved by this restored version, because the reader can first enjoy the never-before-published original, with the farce and drama blended, and then compare it to Twain’s published version. What’s more, the editors’ meticulous scholarship—tracking down even the minutest differences between the various manuscripts and explaining Twain’s sometimes obscure references with detailed endnotes—add to the enjoyment. (For example, one character refers to Angelo and Luigi as “that phillipene! [sic]”; the note explains that “phillipene” was a 19th-century slang term for a nut with two kernels, such as a peanut.)

Particularly entertaining is the editors’ account of the difficulties Twain encountered getting the book into print. Not only did he wrestle with two different plots, but his European and American publishers’ nitpicking caused him frequent headaches....

Read the rest...

David Boaz, RIP

I owe a lot to David Boaz, the VP of Cato who died today, just shy of 71. I was only 29 when he invited me to write a book that Cato published—and, in fact, to do it in less than six months, even though I’d never written a book before, and had no idea what it entailed. That was an extraordinary mark of confidence on his part. Especially because I don’t think I was ever exactly his favorite person; we differed about some things—well, just foreign policy, really—and I always got the sense that my outspokenness bothered him.

I had first met him when I was 22, fresh out of college and full of excitement for libertarian ideas (and he was younger than I am now). So it was only much later that I came to appreciate that his hesitation toward me was actually a manifestation of one of his strongest virtues: he wanted a libertarianism that was accountable, honest, and thoughtful—one that deserved to prevail. And that made him naturally suspicious of my youthful brashness. (He was that rare reader who would come to me with a footnote in something I’d written and ask if I had really read that source? Yes, I had.) So while he held me at arm’s length when I was younger and louder than I am now, it wasn’t personal—it was that he knew that we will accomplish nothing if we resort to exaggeration or bluster to win an argument, and that it’s better even to lose a debate than to employ such tactics. He naturally feared that in my enthusiasm, I might do the latter. (It was partly because of his influence that I, for example, began to maintain a public list of errata in my books.)

That was what made it matter to have his respect. That’s why, years later, when we became closer, and when he said some kind things about one of my books, it meant so much. I had earned his praise. It wasn’t just unconditionally handed out.

That discipline on his part is one of the chief reasons Cato is so respected today. The Institute’s detractors sometimes accused him of…well, what, exactly is hard to say—selling out? having too conservative a temperament? being excessively respectable?—and called him bizarre things like “court libertarian,” because he sought to reform the system in a pro-freedom direction, rather than denounce it, and accomplish nothing, for the sake of feeling oneself morally untainted. These accusations, or rather, this name-calling, was especially absurd given that he stuck to his libertarian principles; he was exceedingly proud of being one of the few signers of the National Review “Against Trump” manifesto who remained true to that commitment in the years that followed—vide his final tweet.

David Boaz is one of those who taught us how to responsibly promote radical ideas. In looking at the looming horizon, I think it's safe to say that our only hope lies in doing just that.

It’s increasingly feeling like the Adults in The Building are leaving us; the people we looked up to for wisdom and guidance are dying, retiring, or doing what Boaz didn’t do, and boarding the S.S. Trumptanic. It’s a chilling thought. But David himself would probably have seen it as an opportunity. He was a young man when he entered the freedom world, and in a sense, he was a pioneer: the first libertarian think tank in the world, FEE, was less than a decade older than he was himself! He and his colleagues had to build almost from scratch an intellectual landscape that we take for granted. He had, so to speak, only the gods to teach him—whereas we've been lucky enough to have rabbis—thanks in part to David Boaz.

We best do him honor, therefore, by heeding the lessons he worked all his life to teach: lessons not just about freedom itself, but about how to preserve and expand and proclaim it. That is what he would have advised: to take the extraordinary advantages that we've been given and move forward, to make the world a freer place than we found it. In fact, that is just what he did advise us, in his farewell speech, which you can watch here:

Good night, America, how are you?
I say, don't you know me? I'm your native son.
I'm the train they call The City of New Orleans.
I'll be gone 500 miles when the day is done.

The eminent domain clauses of the Washington and Arizona constitutions

I've signed a publication agreement with the NYU Journal of Law & Liberty to publish my new article on the origins of the eminent domain clauses of Washington’s and Arizona’s constitutions. Why these two? Because they’re identical: the Arizona framers in 1910 copied the language of Washington’s 1889 Constitution. And what makes these clauses special is the extraordinary degree to which they prevent the use of eminent domain for the benefit of private companies.

Employing ideas that were developed in the constitutions of Illinois, Ohio, California, and other states, the authors of the Washington and Arizona constitutions chose to incorporate four distinct protections against eminent domain: (1) an explicit “no private use” clause, which included a constitutional ban on judicial deference, (2) a requirement for compensation for “damaging” as well as taking property, (3) a rule requiring payment before a condemnation, not after, and (4) a prohibition on deducting from a compensation award the amount of “benefit” the owner allegedly received from the taking. You can read the current draft of my article on SSRN.

This is actually the latest in a series of articles I’ve been writing on the origin and meaning of interesting provisions in the Arizona Constitution. Check out also my article on the Private Affairs Clause and my articles on the past and present of the Gift Clause. I plan to write at least one, perhaps two more in this vein.