Bangs and whimpers
Brackeen ends not with a bang but a whimper
The Supreme Court handed down a disappointing ruling in the Indian Child Welfare Act case, known as Brackeen v. Haaland—disappointing not only to those who wish to see a better future for abused and neglected Indian children, but probably also for tribal governments who sought to defend the constitutionality of the Act. That’s because the justices basically just chose to postpone resolving the important issues. They merely held that the plaintiffs lacked standing to raise those questions, which means the dispute will continue.
That’s quite an anticlimax to a case that not only generated tons of media, but also hundreds and hundreds of pages of rulings by federal judges since the litigation began. You can read my blog post summarizing the decision here, and I wrote about the decision for the Washington Times here. Frustrating as this fizzling-out might be, I’m exceptionally proud of the work my colleagues and I have done on this issue, and I’m confident that Indian children—who are all citizens of the United States, entitled to the same legal protections as all other kids—will get they justice they deserve…someday.
I had the honor of speaking at the Arizona Judicial Conference this week about what was and wasn’t decided in Brackeen, and you can listen to my remarks here. (About 15 minutes.)
I’ll have much more to say about the case in the coming months, of course. In the meantime, you can learn more about ICWA here.
Juneteenth
Speaking of the racism that’s so fashionable on the left today, I had an article about Juneteenth in the Washington Examiner:
How sad, then, that we are beset today by alleged champions of justice who seek not to reinforce but to undermine that maxim, not to realize the spirit of Juneteenth but to undermine it and instill the notion that people should be treated differently based on race. Those who vanquished slavery believed in realizing the American dream for everyone. But today’s race-politics leaders pursue the opposite goal: fracturing us into camps defined by ancestry.
Amusingly enough, this article elicited a lot of heated replies on Twitter, from 1619 partisans who insisted that the Project is not, as I claim, actually aimed at persuading black Americans that this country isn’t for them. But as I have written elsewhere, the Project’s creators intentionally exploited ambivalence in their phrasing to enable to make just this sort of “plausible denial”:
[New York] Times columnist Bret Stephens observed in an October 9 column [that] Hannah-Jones expressed in her opening essay the “unabashedly patriotic thought” that black Americans have more than earned the right to celebrate their Americanness. But that idea clashed with project’s larger thesis that capitalism is inherently exploitative, and that “anti-black racism” is the real nucleus of American nationhood.
This implicit conflict of visions plagued the project from the outset. Although Jake Silverstein now claims that the point of the project was “to think of the 244 years of effort to live up to our founding ideals as part of a larger freedom story,” that effort only makes sense if those “founding ideals” are, indeed, our founding ideals—which is just what the 1619 Project articles denied. Hannah-Jones, for example, declared in the opening essay that “one of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery,” and that the “white men” who wrote “all men are created equal” really “did not believe [those words] to be true.” But if the nation’s founding principles really are racism and oppression, then it’s senseless to celebrate any effort to realize such ideals.
Rather than resolve this contradiction, the project’s authors, especially Hannah-Jones, took refuge in it, alternately affirming and denying the Declaration’s self-evident truths to suit the convenience of the moment. In progressive circles, they claimed that America is a fundamentally racist nation, and then, when criticized as anti-American, they insisted that the project was merely a patriotic testament to the way black Americans have vindicated the nation’s noblest ideals.
The Supreme Court’s affirmative action ruling
And on a similar point, I talked with Armstrong & Getty yesterday about the Supreme Court’s ruling on affirmative action. You can listen to that here.
What happened to the polymaths?
My latest article for Discourse concerned the seemingly elusive “Renaissance Man”—although, as I argue, there’s a sense in which all of us today are Renaissance Men and Women, thanks to the drastic improvements in knowledge in the years since the Enlightenment itself. Still, there’s a particular threat to the very possibility of the “Universal Man or Woman,” as I explain:
Much of the pervasive distraction available today is of greater intellectual or aesthetic value than we tend to realize. Thanks to Wikipedia, Archive.org, Spotify and other resources, we now carry in our pockets the ability to access the greatest scholarship and art in world history, largely for free. Thus, whether we realize it or not, today’s intellectual menu is more nutritious than it was generations ago. With the press of a few buttons, any of us can listen to hundreds of recordings of Rachmaninoff—including Rachmaninoff’s own performances—which no previous generation could have done. Even the best-educated person on earth in 1923 would have been lucky to hear Rachmaninoff play even once. Anyone who sees a beautiful bird while on vacation can look it up online and learn within seconds what its Latin name is, what its eating habits and typical lifespan are, and whether there’s a charity one can donate to, to help prevent its extinction.
As Richard Dawkins once put it, “You could give Aristotle a tutorial”—not because each of us is individually more brilliant than the great Greek philosopher, but because our intellectual world has built cumulatively to a greater height than he could access. And although superstition and fraud are still regrettably commonplace, our atmosphere of knowledge has been purged of much of the nonsense that polluted even the great minds of Aristotle’s day. Thus there’s a sense in which each of us is a Renaissance man or woman without even realizing it. Within a few minutes, any person with access to the internet can learn more about a bird, or Rachmaninoff—or about how to fix a broken dryer or carburetor—than da Vinci or Jefferson was likely to learn in a year. The internet and other technological resources have democratized the uomo universale into the popolo universale.
But that’s true, of course, only if we choose to take advantage of it. There’s a kind of moral hazard in the bounty of our knowledge: It can become an excuse—even a subconscious one—for intellectual laziness. The ready availability of such a rich body of research and art makes it easy to take it for granted, and to devote our energies elsewhere, confident that if a question comes up, we can “just Google it.” That’s not necessarily a bad thing. On the contrary, being a Renaissance man or woman is energy-intensive, and the great advantage of intellectual specialization is that it’s more efficient to let doctors worry about treating cancer, engineers focus on building satellites, lawyers attend to the lawsuits—and to consult them only when one needs their expertise. But both specialization and intellectual sloth pose a threat to mental health no less than physical lethargy does to the body.
The Zone
I talked with Mike Broomhead about the ongoing litigation involving Phoenix’s “Zone” homeless encampment. You can listen to that here.
Assessing our proposed constitutional changes
A while back, the National Constitution Center honored me by inviting me to participate in a project to draft a new proposed U.S. Constitution, and to prepare some amendments to the current Constitution. The Center recently hosted a follow-up event in which Caroline Frederickson, David French, Ramesh Ponnuru, and Akhil Amar, discussed our proposals, and you can listen to that here.
The illegitimacy of civil asset forfeiture
The Goldwater Institute, joined by the Pacific Legal Foundation and the Manhattan Institute, filed an amicus brief in a Supreme Court case involving civil asset forfeiture. The case doesn’t directly challenge forfeiture, but instead concerns the government’s ability to keep seized property in its possession during the time it takes for the judge to decide whether it had the authority to take that property—something lawyers call pendente lite. But we took the opportunity in the brief to discuss why forfeiture is such an injustice, and such a danger to American society generally: because it fosters “legal cynicism” and leads people to sympathize with lawbreakers. You can learn more in my paper “How Asset Forfeiture Undermines Government’s Legitimacy,” and you can read the brief here.
I also published an article on Townhall.com yesterday about the case:
Perhaps worse than all of this is the way forfeiture undermines the legitimacy of law enforcement itself. When citizens see officers as profit-seeking predators rather than disinterested protectors, it generates resentment that can grow into what sociologists call “legal cynicism.” People become reluctant to call the police when in need, relying on vigilantes, instead—and they begin to sympathize with lawbreakers, sometimes helping them conceal their crimes. There’s nothing new about this: in 1790, James Wilson, a signer of the Constitution, warned that forfeiture is so unjust that people view it with “sentiments of pain and disgust”—sentiments which eventually lead them to engage in “a deadly feud with the state.”
The pendente lite principle adds still more injury: it lets officials keep property before that confiscation has even been deemed legal—which can take a long time. That means that even if the owner ends up winning her case and getting her property back, the delay may have rendered it worthless. In one case, prosecutors tried to seize an entire company pendente lite, promising that they’d return it if the court later decided the taking was invalid. The court rejected that notion, pointing out that “the business itself would at that point be drained of any good will by the summary closing, because the old customers would by then have resorted to new places.”
Searching for Mr. Wright
A few days ago I spoke at Level Up (which is the new name they’ve given to TOS-Con), about the life and ideas of Frank Lloyd Wright. I hope to be able to post the video of my remarks soon. In the meantime, Christina and I are off to visit some of Wright’s houses. Every year, we spend Independence Day in a different state, and this year, we’re heading to Wisconsin and Minnesota, to visit Taliesin and several other Wright buildings. I’m particularly keen to see the National Farmer’s Bank by Wright’s teacher, Louis Sullivan. I’ll post some pictures here next month. In the meantime, I leave you with Christopher Slaski’s “Wingspread,” one movement from his four-part “Frank Lloyd Wright Suite”: