2021 year in review
Best and worst books I read this year
At my real blog, Freespace, I take a look at the best and worst books I read this year. The best was Man’s Search for Meaning by Viktor Fankl, recommended to me by my friend Andrew Heaton. The worst was probably Freedom: An Unruly History by Annelein de Dijn, which is just flat out dishonest. (You can read my review of it here.)
Speaking of intellectual dishonesty…
For those following the saga of the American Indian Law Review’s cancellation of my article “The Federalism Problems with the Indian Child Welfare Act,” the editor emailed me last week to say that they would go ahead and publish the article, after all—but they wanted a bunch of changes, first. These changes were transparent efforts to retroactively justify their decision to breach their contract with me—for example, the editor claimed that “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.—wanting me to address these cases. But as you can see by just looking at the article, Part I is not devoted at all to the biological classification in ICWA! That is the subject of a separate article, “The Unconstitutionality of the Indian Child Welfare Act,” that is scheduled for publication in another journal. For a second, I wondered if the American Indian Law Review folks had confused the two….
In any case, I simply told them that I was going to stick with the Texas Review of Law & Politics, which agreed to publish the article after the AILR broke its promise with me. I am grateful to the University of Oklahoma College of Law’s dean and to the AILR’s academic advisors, for at least persuading the students that they are obligated to honor their publication agreements, but the dishonesty and closed-mindedness of these students speaks for itself, and the University ought to be ashamed of their partisan and unscholarly behavior.
Incidentally, the Supreme Court is scheduled to conference on January 7 about the petitions for certiorari in the Brackeen case involving ICWA, so you’ll likely be hearing more about this issue soon.
Barnett and Bernick’s Fourteenth Amendment
My latest book review, for Discourse, is of Randy Barnett and Evan Bernick’s new book The Original Meaning of the Fourteenth Amendment. I have the greatest respect for these guys, and of course agree in substance with virtually everything in the book—except for its most fundamental claim, which is that it’s an exercise in Originalism. I don’t think it is, at least not in any significant sense. Instead, it tends to swerve a little back and forth between Originalism and objectivity, before turning into the latter—which I consider quite welcome.
Originalism makes one or both of two claims: “Normative Originalism,” which says that we’re bound to the text as a result of something about the text’s origins, and “Semantic Originalism,” which says that a written text is given its meaning by some authoritative entity, usually the “ordinary person,” at the time the text was written. Neither is persuasive.
Normative Originalism is out because nothing about the origin of the text can bind us in any moral sense. Instead, assuming we are bound to follow the Constitution or the law, it is for some other kind of reason—because the law is good, or because it leads to flourishing, or even just because it’s safer that way. In fact, the Constitution’s text itself seems to admit this, because it requires office-holders to take an oath. If the text itself bound us due solely to some fact about its origin, there would be no need for this; we’d be bound by the fact that our ancestors signed it. Instead, the Constitution implicitly acknowledges that you do not have to support and defend it—you can choose not to—but of course, you can’t serve in office if you make that choice.
Semantic Originalism is the tougher nut to crack. It seems plausible that language means what people think it means at the time it’s uttered. But I’ve been persuaded by Tara Smith and Michael S. Moore that this is not so. Context is certainly important for understanding language, but the speaker or the hearer of a sentence does not give that sentence its meaning. Rather, the speaker or hearer is trying either to articulate or to understand an actual world underneath that sentence, and it is the sentence’s adherence to that actual world that gives it meaning. If you’re committed to moral realism, as I am, then you see no distinction here between a word like “death” (to use Moore’s example) and a phrase like “privileges or immunities.” In both cases, the language tries to describe a real thing, and when we seek to understand, let alone to obey, that language, we inevitably end up seeking out that real thing—not relying simply on the mindset of the authors of the language.
I mean “inevitably,” too. As expressed in a fine quotation that was edited out of my review:
The essential premise at the heart of Semantic Originalism is the claim that, as a theory of interpretation, it gets to the heart of constitutional law as a matter of linguistic fact. That is, to disagree with Semantic Originalism is to disagree with an understanding of what the constitutional text literally means. The meaning of the text, according to Semantic Originalism, is its ordinary public meaning at the time of its adoption. However, inasmuch as the Constitution makes use of moral terms like “person” or “equal protection,” and insofar as one is committed to moral facts and values as independent and objective entities, Semantic Originalism fails to adequately account for the actual meaning of those terms. And an attempt to modify Semantic Originalism to account for the existence of objective moral reality fundamentally displaces original public meaning as the governing principle of constitutional interpretation and construction.
-Ash McMurray, Semantic Originalism, Moral Kinds, and the Meaning of the Constitution, 2018 B.Y.U. L. Rev. 695, 727 (2018).
And sure enough, as I say in the review, Barnett and Bernick attempt just this modification, by essentially and quietly abandoning Semantic Originalism in the course of their argument, and instead relying on a moral-realist claims about the nature of rights, justified government, legality, etc. Again and again they appeal to values such as “rule of law,” instead of what they call “shared mental events.” Indeed, they expressly disclaim the latter as the basis for their argument. (With one rather frustrating exception, which perhaps we can get into later.) All of this is to the good, because their argument is stronger without the Originalism. They should come out and say so.
Architecture
I mentioned last month that I’ve been indulging my love of great architecture, in part because I was working on this U.S. Supreme Court brief, arguing that architecture is an art form entitled to First Amendment protection. It was a fun brief to write, and an issue I’ve long been interested in, though it’s obviously a long shot to persuade the justices.
But another part of it was in preparation for my latest book review for The Objective Standard, which looks at a new volume on the “father of the skyscraper,” Louis H. Sullivan.
Don’t pack what ain’t broke
Speaking of the Supreme Court, I argued in this Discourse article that the idea of packing the Court—popular among Progressives nowadays—is dangerously foolhardy. Excerpt:
Like the ratification of the Eleventh Amendment and dozens of similar efforts throughout American history to curb the judiciary, the 1937 court-packing proposal revealed that 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.
Juries
I also had another article in Discourse about the importance of the jury system. In the wake of the Kyle Rittenhouse verdict, certain loudmouths on Twitter were bashing the jury system as obviously tainted with racism, etc., etc.—only to have to reverse themselves within a few days in light of a few verdicts they approved of more. In any event, I argue that the jury system made indeed be flawed, but that it’s the best we’ve come up with.
The trumpeter, not the bassist
One of my musical discoveries in 2021 was Avishai Cohen—the trumpeter, not the bass player of the same name. He’s marvelously versatile, able to whip out a rousing and melodic rocker like “One” with the Omer Avital Quintet, or “Nature’s Dance,” from his fine album Flood—or more abstract or gentle pieces such as his version of Beethoven’s “Moonlight Sonata” with the group Big Vicious, or “Into the Silence,” from his ECM album of the same name. I was glad to learn he has a new ECM album coming soon. One track is already available.
2021…Next!
There were a lot of terrible things this year, especially at the beginning. But there was also much good, and much to be thankful for. I saw my first live volcano. Christina hiked across the Grand Canyon in a single day. We got to volunteer at a drive-through vaccine clinic (which was actually a lot of fun). I got to teach a class at GMU. I got to read great books and listen to beautiful music and see fantastic art… I can’t wait to see what 2022 will bring.