Rounding up the Supreme Court term
The Supreme Court ended its term a little late this year, with several interesting and important decisions, and the Goldwater Institute hosted an online round-up with me and my colleague Jon Riches discussing them. You can watch it here:
The Supreme Court got it right in the NetChoice cases…
I also discussed the NetChoice decision in an article for The Dispatch; that case concerned laws in Texas and Florida that violate the free speech and property rights of social media companies. I argue that the Court got it right—and that the conservative dissenters got it shamefully wrong. Excerpt:
In 2021, lawmakers in Florida and Texas passed laws that prohibit “social media platforms” from deleting, editing, “de-boosting” or “inhibiting the publication” (whatever these things mean) of users’ messages, without first providing a “precise and thorough explanation” for doing so. Moreover, the laws entirely forbid social media companies from deleting or editing any post by a “journalistic enterprise”—defined to include blogs. Lawmakers adopted these laws after some conservatives complained that social media companies were “censoring” or “shadow-banning” their messages, terms which are effectively synonyms for “not publicizing someone’s messages as much as conservatives would like”….
The First Amendment protects the freedom of speech, not some “balance” of speech that politicians consider worthwhile. In fact, for all of American legal history, courts have made clear that the Constitution doesn’t call for any (so to speak) ideological affirmative action, in which government boosts “underrepresented” viewpoints and muffles others that are heard “too much.” The protection of free speech is achieved, not by giving bureaucrats power to “balance” who hears what, but, in Kagan’s words, “by preventing the government from ‘tilt[ing] public debate in a preferred direction.’”
…and in overruling Chevron…
I also talked with my friend Andrew Heaton about the Loper Bright case, which eliminated the Chevron deference doctrine. He’s not as sure as I am that the Court got it right, and we had a nice conversation about it on his podcast, which you can listen to here.
…and in the homelessness case
And I had an article on Fox News’ website about the Court’s ruling in the homelessness case, Johnson v. Grants Pass. Excerpt:
The unanswerability of such questions shows why even city officials acting in good faith found the Ninth Circuit’s one-size-fits-all rule unworkable — and why city officials not acting in good faith found that rule a handy rationale for simply leaving the homeless on the streets, as Phoenix officials did when they created the infamous “Zone.”
This new decision also makes clear why local communities must take responsibility for enforcing the law to protect taxpayers and property owners, rather than engage in massive, ideologically driven dereliction of duty.
And in the State Supreme Courts…
Meanwhile, I and my Goldwater Institute colleagues got some great news from a couple state supreme courts. The Texas Supreme Court issued an important ruling in one of our “gift clause” lawsuits challenging a type of government handout to public-sector labor unions, called “release time.” It’s a bit of a strangely written decision, but the bottom line is that the justices said “release time” subsidies are unconstitutional. The bigger win came yesterday, however, Arizona’s Supreme Court unanimously held that the same kind of “release time” schemes violate the Arizona Constitution.
These two rulings are huge steps forward for taxpayers, and set vital precedent for enforcing one of our most important constitutional guarantees. You can read more about them at the Goldwater Institute’s blog In Defense of Liberty.
Six Hundred Thousand Despots—and one “woke” editor
In The Objective Standard, I took a look at a recently re-discovered memoir by an escaped slave named John Swanson Jacobs. His better-known sister Harriet published a memoir of her own called Incidents in the Life of a Slave Girl, but John had published his a few years earlier—only to have it fall into obscurity. It’s now been republished, and it’s quite interesting…but it’s handicapped by an editor who tries to use it to make a sort of 1619-style argument:
[Shroeder] combines the gibberish lingo of Critical Race Theory with the nihilism (or as Shroeder prefers, “Black radical antisentimentalism”) of the 1619 Project—and these severely mar the biographical essays and explanatory notes in the book. Consider Shroeder’s assertions that “[the] sentimental mode that is hardwired into the liberal contradictions of American national fantasy. . . makes scenes of pain serve as both embodiment of Black inhumanity and proof of Black humanity,” or that Six Hundred Thousand Despots “radically rewrites the humanitarian contract between reader and text.” To the extent these phrases mean anything, they aren’t true.
Faddish jargon like this is bad enough when it’s merely distracting, but Shroeder’s efforts at profundity repeatedly cross the line into the ridiculous. At one point, for example, he says that “slaveowners enacted their violence in the marketplace by breaking the bodies of the enslaved down into parts (field hands, long fingers for picking cotton, and so on).” Presumably, if using a term like “field hands” constitutes “breaking the body,” Douglass was also breaking it when he wrote “Men of Color, to Arms!” during the War, and Garrison was equally to blame when he prayed, “Let us shiver to atoms those galling fetters, under the pressure of which so many hearts have bursted [sic]. Let us not shackle the limbs of the future workmanship of God….
These flaws are regrettable because they detract from the magnificent story of a man of exceptional virtue. The patience and intellect Jacobs needed to engineer his flight from slavery, the courage and steadfastness necessary to make a life of adventure on the seas, the eloquent indignation with which he describes his experiences in captivity, and, most of all, the calm and unshakeable self-esteem reflected in every line of his book are striking, even thrilling. A vivid example of Douglass’s insistence that personal pride is the indispensable foundation of liberty, Jacobs wrote with a ferocious calm that “God created me a freeman and with His assistance I will die one. . . . The slaveholder who gets my labour shall pay as much as it is worth for it, and his life, if possible, with it.” His laconic references to the brutality of slavery—and his refusal to “trouble [readers] with any fishing stories”—bespeak a man of focus and candor. “Liberty,” he wrote with his distinctive straightforwardness, is “the fountain of all our joy.”
The Identity Left’s war on science
I also reviewed a new memoir by anthropologist Elizabeth Weiss, who ran into trouble for her criticism of NAGPRA, a federal law that forces universities and museums to turn over scientific specimens to Indian tribes (who then destroy them). The law was originally written in response to allegations of theft and grave-robbing by scientists, but today it’s often used by Native religious fanatics and their work allies who are committed for ideological reasons to the destruction of science and civilization. Here’s an excerpt:
Religion is, indeed, what instigates much of the controversy involving NAGPRA. Some Native groups hold that their tribes were created within North America by the gods—that the first humans emerged from the Earth at the behest of Wakȟáŋ Tȟáŋka (Great Spirit) or were transformed by Áwonawílona (the Maker of All) out of web-footed creatures swimming in the underworld, to cite just a few examples. Many tribes are also hostile to the land-bridge theory most anthropologists hold, according to which humans migrated to North America about thirty thousand years ago through what is now Alaska.
But most of those responsible for implementing NAGPRA, and state-law versions of NAGPRA such as California’s “CalNAGPRA,” don’t hold these religious beliefs themselves. Rather, they’re adherents of postmodernist, anti-reason ideologies according to which Native Americans are spiritually pure due to their being “untainted” by Western civilization. According to this “noble savage” myth—which dates back to Jean-Jacques Rousseau—indigenous peoples are models of moral sanctity, political peace, and ecological harmony with nature. In other words, adherents of this anti-Western ideology view Native Americans not as individuals facing real challenges in contemporary life, but as stereotypes—convenient symbols for everything opposed to capitalism, technology, and the complexities of modern life. As Weiss notes, acolytes of postmodernist mythology are sometimes motivated to be more “Indian” than actual Native Americans themselves—even pretending to be Natives when they aren’t—and taking up what they consider a moral crusade against science and reason in the name of “social justice”—a crusade that does nothing to benefit Native Americans or anyone else.
Does libertarianism need an “update”?
In a recent post on the log Law & Liberty, Randy Barnett argued that libertarianism needs to be “updated” because it’s too much of an “ideal theory”—that is, too focused on philosophical abstractions, and therefore unable to address problems in the “second-best” real world. He particularly singled out the risk that private businesses can collude to violate people’s rights. While I admit that’s a risk, I disagree with Barnett’s view that this indicates a weakness in libertarianism, and I explained why in an article in Discourse. Here’s an excerpt:
Philosophers use the term “ideal theory” to describe an argument that posits an optimal society based on abstract, idealized assumptions about people’s behavior. Libertarianism is the opposite of this. It doesn’t assert that people are inherently good, or that they would accomplish great things if government merely got out of the way (although that’s often true). Instead, it recognizes that people are fallible—often ignorant, foolish and malevolent—and concludes that for this very reason, their ability to use government’s coercive powers should be minimized. Thomas Jefferson put the point succinctly when he said: “Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?”
In other words, libertarianism is skeptical, even pessimistic, about human capacities—especially those of the humans who wield government power, and are as fallible as the rest of us, if not more so. Precisely because libertarianism does not make idealized assumptions about people’s behavior—and holds that utopia is impossible—it concludes that the least bad alternative is to leave people free to make their own choices (subject to legal accountability if they harm others). After all, they have a stronger incentive to avoid bad decisions in their own lives than any outsider could possibly have.
I was a bit disheartened that Prof. Barnett’s response was to characterize my article as a “diatribe,” which I don’t think is accurate, and to engage in horse-laugh and other logical fallacies, instead of actually responding with substance. You can read his thread here.
He seems to think government can somehow declare cellphone companies and similar businesses “common carriers” and control their operations…without maintaining some form of bureaucratic management, with its accompanying knowledge and public choice problems. He claims I’m “denying” facts that I repeatedly and explicitly acknowledge in the article…and then clings to the utopianism of which I accuse him. He laughs off the empirical fact that competitors have, indeed, started up new companies as alternatives to the perceived “discrimination” of Twitter and Facebook—and, in the past, did start up competing banks and other businesses in the Jim Crow days—calling these things “unrealistic” even though they actually happened—…and then he accuses me of “waving away” things. But most of all, he seems really bothered by the length of my article. Well, to that, I have no defense—but at least I managed manage to keep it under 656 pages.
Sarah Brightman
I leave you this month with a piece by the incomparable Sarah Brightman, who was brought to mind by a recent subscriber. Here she is singing the apt “Wishing You Were Somehow Here Again,” from Phantom of the Opera (“Wishing you were somehow here again … / Sometimes it seemed, if I just dreamed / Somehow you would be here.”)
Lots coming up in August—can’t wait!