December update

“Cancelled” by the American Indian Law Review

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 next 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....

Victory for two Virginia mothers sued by public school bullies

You’ll recall that a few months ago, the Fairfax County School Board sued two moms who published information about how the School Board operates. On November 16, a Virginia trial judge rejected the Board’s effort at censorship. You can read about that on the Goldwater Institute’s website.

The producers

I was the keynote speaker at the Western Growers Association’s annual meeting in San Diego, where I spoke about the regulatory burdens on producers, and about the virtues necessary for productivity. You can read my remarks here.

A Hawai‘i interlude

For our tenth anniversary (can you believe it?), Christina and I spent a week in Hawai‘i, and specifically on the Big Island, which we’ve really come to enjoy. Aside from its otherworldly beauty, the history of Hawai‘i also turns out to be utterly fascinating. I’m particularly interested in the ‘Ai Noa, the religious revolution of 1819, when Queen Ka‘ahumanu, in league with Queen Keopuolani and Chiefess Kap‘iolani, overthrew the horrid religion known as kapu. Among other things, kapu (which is where we get our word “taboo”) forbade men and women eating together; this was known as ‘ai kapu. Women were also prohibited from eating pork, or bananas. The ali‘i (nobility) were sacred, and it was kapu—punishable by death—for a commoner to so much as allow his shadow to fall upon an ali‘i.

Upon the death of Kamehameha I, his widows, Ka‘ahumanu and Keopuolani, along with the priest Hewahewa and Chiefess Kap‘iolani decided to put an end to the tyranny and lies. Ka‘ahumanu announced an end to kapu, and at the next king’s coronation, in May 1819, Keopuolani sealed the deal by eating a banana in the presence of her son. That November, the new king, young Liholiho, sat down at the table with women and began eating. The cry went up, ‘ai noa!—which means “free eating!”—and men and women dined together at last: the first luau. That all happened here, in Kona, at what is now the Marriott.

It was not the end of the story. Months later, reactionary forces seeking to restore the old religion, gathered in rebellion against Ka‘ahumanu. A battle was fought among the razor-sharp lava rocks at Kuamo‘o, where the Queen was victorious. The battlefield there is preserved, and is not far from a spot the locals aptly call The End of The World.

(Kuamo‘o battlefield)

Incidentally, Kamehameha is much celebrated today, with statues of him everywhere, and highways and schools named for him. By comparison, Ka‘ahumanu and Keopuolani are largely ignored. (Kap‘iolani—who is not to be confused with the later queen of that name—at least has a movie. Ka‘ahumanu has a highway and a shopping mall.) This is a shame. Kamehameha was no hero. He was a cruel tyrant, who used western weapons and technology to slaughter other Hawaiians and conquer the archipelago (which he did not really succeed in doing, by the way), largely for the benefit of western colonial powers. His widows, whom he shamefully abused, are the real heroines—and good ones for us today, considering the threat to civilization still posed by certain other sanguinary and misogynistic religions in the world.

I wrote about the ‘ai noa some years ago for The Objective Standard.

Public nuisance

I’ve long argued that the legal theory known as “public nuisance” is unconstitutionally vague, because no lawyer can tell you what a “public nuisance” actually is. It used to mean something like polluting a common stream or obstructing a public highway, but nowadays it means basically anything that causes some kind of social harm that the government sees fit to spend money on—which, of course, means everything. Several months ago, I filed a brief in the Oklahoma public nuisance lawsuit involving opioids—and in October I spoke about the subject on a panel sponsored by George Mason University. This month, the state Supreme Court ended up throwing the case out. George Will was kind enough to mention my work in his column a couple weeks ago.

Don’t pack what ain’t broke

I have an article in Discourse on why schemes to pack the Supreme Court, or to limits 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.

The libertarian constitution

A year or two ago, now, I participated in a project sponsored by the National Constitution Center to draft a “libertarian constitution”—the idea being that there would also be a Progressive team and a Conservative team to draft their own versions of the Constitution, and we’d compare them. You can see our work here. Radio show host Bob Zadek had me on a couple weeks ago to talk about what we made some of the choices we did, and you can listen here.

Elmer Kelton

In my latest book review for The Objective Standard, I took a look at a new anthology by the late Elmer Kelton. Once named the best of all Western novelists, Kelton has been a favorite of mine for some time. I examined his whole career a few years ago in the Claremont Review of Books. If you haven’t read his The Time it Never Rained, you really should.

McLean’s “Elements”

My latest musical discovery is Michael T. McLean’s violin concerto called “The Elements.” Each of the four movements represents one of the four ancient elements—earth, fire, air, and water. It’s quite lovely, especially “Air,” which you can listen to here. The harmonies that come in a little after the five minute mark are particularly sweet.

Louis Sullivan

I found McLean because he did the music for a documentary I recently watched about the architect Louis Sullivan, Frank Lloyd Wright’s mentor. Sullivan differed from Wright in that he relied a lot more on ornament and a lot less on form in his work, but his buildings are still quite lovely, especially the “jewel box” banks that he made late in his career when he had been largely forgotten by the architectural world. The documentary, Louis Sullivan and the Struggle for American Architecture is on YouTube and really worth watching; the jewel boxes are featured at about 1:15:00.

Architecture

Of course, I’ve been reviving my passion for architecture lately anyway, but I watched the Sullivan film as part of research for a brief I’m writing now on a subject that I’ve also long been passionate about: the idea that architecture should be protected speech under the First Amendment. I wrote about this briefly in The Permission Society, and when I was a PLF, we did a brief on the subject in a case in Nevada. But now a cert petition has been filed in a case from Florida in which the Eleventh Circuit rejected a freedom of expression argument by a man who wants to build an International Style house in place of the Spanish colonial house that exists on the site now. I’m preparing an amicus brief, which is a heck of a lot of fun to write, and should be filed in the coming weeks.

Until then…