The Indian Child Welfare Act
November was largely dominated by work on the Indian Child Welfare Act case, Brackeen v. Haaland, which was argued in the U.S. Supreme Court on November 9. I had the honor to attend the arguments.
I’ve been working on ICWA since I started at the Goldwater Institute in 2016, and it was a thrilling experience to travel to the Supreme Court this month to hear the arguments we’ve developed put before the justices. In the run-up to the case, I published articles in National Review and Attorney at Law magazine explaining the issues at stake, and talked with reporters from many news outlets. Fox News’s article was probably the best. You can read our brief on the merits here—which I tried to write in plain language that requires no specialized legal knowledge to understand.
As always, it was a long time standing in line at the Court…but it was even longer sitting through nearly four hours of oral argument! (You can listen here if you’re up to it.) Since the Court changed its procedures, oral arguments have gone on a lot longer, and are almost back to the Daniel Webster era, when the lawyers would take all day to present a case. And the quality was almost as good, too: the lawyers put on a superb performance in presenting the issues.
It was exciting to be there, but an even greater honor to spend time with the Brackeen and Clifford families, who have had the courage to fight for the rights of Indian children—and to fight for their right to help children in need…when the federal government says they’re not allowed to because their skin is the wrong color. These people have put far more into this case than we mere lawyers have, that’s for sure, and none of us will ever forget that, no matter what the outcome.
We the People Stories
I joined Jeffrey Rosen on the National Constitution Center’s podcast We the People Stories to discuss ICWA and the Brackeen case. You can listen here.
What should happen if ICWA is declared unconstitutional?
Also, Discourse asked me for my thoughts on the question: what happens if the Court does declare ICWA unconstitutional? How should it be reformed? I answer here. Excerpt:
Congress had the best of motives when it adopted ICWA; previous decades had witnessed significant abuses of government power that resulted in the wrongful separation of families out of a misguided effort at compulsory standardization. But in trying to prevent a repeat of these abuses, Congress ended up overriding some of the most important principles of family law—and of the Constitution. If the justices declare it invalid, Congress should be prepared to fix the law with alternatives that prioritize the best interests of Native citizens over the demands of racial politics.
Time to respect the right to earn a living
On the same day that Brackeen was argued, the Fifth Circuit Court of Appeals issued a remarkable decision in which Judge James Ho concluded that the right to economic liberty is one of the traditional rights protected by the due process clause, and even called for the Supreme Court to take up a different case (called Tiwari; here’s my brief in that case) involving that issue. I was delighted to see that Judge Ho relied heavily on my book The Right to Earn a Living, in doing so. Alas, the Supreme Court did not take the Tiwari case, but we’ll get there eventually.
Freedom’s Furies
I had a chance to talk with Armstrong & Getty about the Brackeen case, the Phoenix “Zone” lawsuit, and…my new book! Freedom’s Furies: How Isabel Paterson, Rose Wilder Lane, and Ayn Rand Found Liberty in an Age of Darkness—and then I headed back to D.C. (where I am today) to talk about the book at the Cato Institute. On the panel with me were Elizabeth Nolan Brown, Carla Howell, Kat Murti, and Paul Meany. You can watch it here:
I also wrote an article for Discourse that gives a little taste of what you can find in my book. Excerpt:
[Rose Wilder] Lane would later become the silent half of a writing partnership with her mother, Laura Ingalls Wilder, producing the Little House on the Prairie series of novels. Those books did more than perhaps any other books to romanticize American frontier life. But the reality was that Lane, who like Paterson was born in 1886 and grew up on the frontier, hated the experience. She despised it so much, in fact, that she fled her parents’ home as soon as she could, and by the 1920s, she had moved to Albania.
In those days, she considered herself a communist. But traveling throughout Europe in the 1920s shocked her out of that belief. Visiting Georgia and Armenia during the Bolshevik takeover, she witnessed the brutal collectivization imposed by communists who confiscated grain from peasants and then forced them to work on railroads and canals to get it back. “We intend to redistribute [food] to the neediest,” one Soviet official told her. “We will see that they are the most needy by making them work for it.”
Five years later, Lane abandoned her dream of living in Albania when that country became a battleground in the proxy war between Soviet-sponsored communists and Italian-supported fascists. Returning to her parents’ farm in Missouri, she began studying economics and history in an effort to understand why America differed so radically from the oppressive societies of the Old World. Europe and Asia, she decided, were dominated by hierarchical thinking—a belief that social and economic order must be imposed by an authority figure. America, by contrast, was “wholly dynamic…. A civilization always becoming, never being.” That dynamism proceeded from the nation’s recognition of the fact that political authorities have no special power to establish order or create prosperity. Instead, the source of all creativity and wealth is the individual, and freedom is essential to that creativity—not as a mere matter of tradition or political choice, but as a consequence of the fact that each person is ultimately responsible for him- or herself.
Louis Sullivan
I had a new poem published a few days ago in Ekphrastic Review, this one an homage to the great architect Louis Sullivan. It’s in free verse, in part because Sullivan himself was a free-verse poet, and even included several of his own poems in his book Kindergarten Chats, to make his point that architecture is itself a form of poetry. My poem specifically features his Bayard-Condict building (his only structure in Manhattan), as well as the “Golden Doorway” of his Transportation Building at the Chicago World’s Fair.
Emerson, Ibsen, and Rand
I participated in the Objective Standard Institute’s recent online class comparing and contrasting the ideas of various interesting thinkers with those of Ayn Rand. I was asked first to do a presentation about Henrik Ibsen, and then, when another presenter couldn’t make it, was asked to present about Ralph Waldo Emerson, too. You can watch these talks here (paywall).
Important developments in Arizona jurisprudence
I filed two briefs in the Arizona Supreme Court this month, in cases involving important jurisprudential issues. In Cao v. Dorsey, a lower court said that a certain law was unconstitutional, and then went on to say it still applied because the plaintiff and the defendant agreed by contract to be bound by laws existing at the time of the contract (which was before the law was declared unconstitutional). That’s wrong, and I explained why here. Then in Root v. Sierra Vista, the trial court said some people couldn’t sue because the government had not yet taken any action against them—and then the court of appeals said they couldn’t appeal because they were still free to file a lawsuit in the future if the government did act against them. That’s all wrong: you can sue to prevent future harm, no less than to seek redress for past harm, as I explain here.
Polish music
I was impressed recently, while watching the 2018 film Cold War, by the performance of Chopin’s fantaisie impromptu during one scene. It turns out the performer is Marcin Masecki, a musician who spans classical, jazz, and other genres, and although his version of fantaisie impromptu isn’t available, he did release an album of Chopin’s nocturnes in 2017, which I think is really extraordinary. Masecki learned to play them by ear, and he performs them on an upright piano, which gives them an unusually solitary and, well, nocturnal quality. I really recommend it. His most recent album is pieces by J.S. Bach and C.P.E. Bach, as well as Mozart, and is also good. His other albums are, well, avant-garde jazz, and, I confess, a bit too avant-garde for my tastes.
Another Polish musician I recently discovered is the Romantic composer Sergei Bortkiewicz, who is especially interesting because his style blends Romanticism with a little more of a modern sound than you’re accustomed to. In listening to a piece such as Fantasiestucke, you expect it to go one way, and it goes another instead, sounding more contemporary than you anticipate. A very fine companion to Rachmaninov, Chopin, etc.
I’ve also long been a fan of Polish jazz, particularly Anna Maria Jopek, the Marcin Wasilewski Trio, some of Nighthawks, and, of course, the late Tomasz Stanko, although the latter sometimes got a little too out there for me.
It’s Christmas season in Phoenix, which means Zoo Lights, Luminarias, and light sweaters. Wishing you and yours a joyful holiday season….