Welcome to the September issue of the Freespace newsletter. August was a busy month:
Blacklisted for playing at the park
I and my friend Adi Dynar had an article in the Arizona Republic about our lawsuit against the Arizona Department of Child Safety, which has placed our client's name on the state's blacklist because she let her son play in a public park for a half hour while she went inside the grocery store. Excerpt:
[Arizona] law lets unelected, unaccountable bureaucrats blacklist people like Sarra based on what lawyers call “probable cause.” “Probable cause” is far less evidence than the “reasonable doubt” standard required to convict someone of a crime. It’s even less than the “preponderance of evidence” standard that governs civil lawsuits. In fact, Arizona courts have said “probable cause” is a kind of suspicion – it means the government thinks it’s possible the person did something wrong. Worse, a person’s name can be put on the registry without a trial through an “administrative” hearing. This type of hearing doesn’t follow the rules of evidence that apply to courtrooms, and it’s presided over by a hearing officer, not a judge. Amazingly, even if the officer finds someone not guilty, DCS’ director can override that ruling and put her on the registry anyway.
Reason also covered the story here.
The right to earn a living is a fundamental right
I filed a brief recently in a case coming out of Kentucky, on the issue of whether the right to economic liberty deserves serious legal protection. The answer, of course, is yes—but more: the right to earn a living is a “fundamental” right, by any test that you use. The Supreme Court has basically adopted two different tests for deciding what is a “fundamental” right (which means, a right that gets really significant constitutional protection) as opposed to a “non-fundamental” right (which means judges basically ignore it). There’s the history test, which asks if this right is “deeply rooted in our history and tradition,” and the conceptual test, which asks if this right is inextricable from a “system of ordered liberty.” Under either test, the right to make one’s own economic choices must count. I’m especially proud of this brief, which is written in layman’s terms, and you can read it here.
I also wrote an article in Town Hall about it, which you can read here. Excerpt:
If the “American Dream” means anything, it means the freedom to put your skills to work providing for yourself and your family. Whether it’s finding a job with an existing company or starting a new business—be it in carpentry or law, electronics or bookselling—the promise of economic freedom has drawn immigrants to our shores for generations. And it’s given Americans born in poverty the chance to rise on their own merits.
Yet today, this idea—one deeply rooted in our nation’s history and tradition—is being neglected, even denigrated, by those responsible for enforcing our constitutional rights: the judges tasked with protecting liberty against arbitrary government interference.
Supreme Court roundup
My colleague Jon Riches and I hosted a discussion about the last Supreme Court term, looking at their big decisions about the power of bureaucracies, laws restricting gun rights, and, of course, the abortion case. We tried to look beneath the headlines, and get at some of the more lasting effects of these rulings. You can watch here:
“Substantive Due Process.” It must be preserved.
The folks at The UnPopulist asked me to explain substantive due process, and why Justice Thomas’s opinion in Dobbs, which calls for the erasure of substantive due process, is wrong. I did my best, in an article that editor Shikha Dalmia tells me is the longest The UnPopulist ever published. Don’t let that deter you, though; I promise you it’s not boring.
Incidentally, I provide a more thorough explanation of substantive due process in my book The Conscience of the Constitution, and in my article “In Defense of Substantive Due Process.”
What’s a preamble, anyway?
I also had a chance to talk with Amelia Hamilton of the Growing Patriots Podcast, a podcast for young people looking to learn more about the Constitution. We talked about the preamble to the Constitution and what it means—and particularly, what the most important part of the preamble really is. You can listen here.
1776
In a similar vein, I joined Cato’s Pop & Locke podcast to talk with Landry Ayres, Paul Matzko, and David Boaz about the musical 1776. When I was younger, I really didn’t like 1776, but as I explain in the podcast, I’ve changed my mind about it in recent years.
Jimmy Lai’s stand for freedom in Hong Kong
The Goldwater Institute held a free showing of The Hong Konger this month—a film about imprisoned Hong Kong freedom activist Jimmy Lai. With us at the theater to talk about the film later were Andrew Bremberg of the Victims of Communism Memorial Foundation, and Eric Kohn of the Acton Institute, who was a producer on the film. It’s a very touching and powerful movie, and you can learn more about it here.
Not only was it an honor to host this movie and to interview our guests about the risks posed by China’s aggressive totalitarian government, but it also meant a lot to me personally to participate in this event in honor of my late mentor Bruce Herschensohn, a great friend of Hong Kong, whose final book, A Profile of Hong Kong, we talked about at the event. I reviewed the book here.
Books
Speaking of books, I’m glad to say that I’m finished at last with my own latest book, Freedom’s Furies: How Isabel Paterson, Rose Wilder Lane, and Ayn Rand Found Liberty in an Age of Darkness—turned in the final batch of corrections, and finished recording the audio version. The book is due out in November. If you’re interested in a preview, the new issue of The Objective Standard has a slightly edited version of my June presentation at TOS-Con in which I explained how Isabel Paterson gave Rand the idea of using “Atlantis” as a symbol in her novel Atlas Shrugged.
Notes on Virginia
Also in The Objective Standard is my latest book review, this time of a new, scholarly edition of Thomas Jefferson’s book Notes on the State of Virginia. I’m afraid I was not impressed. As is the fashion nowadays, the editor struggled to find some sort of nefarious motive to explain things Jefferson did, which have already been explained by simpler and well-known facts. Excerpt:
That error leads Forbes into another dubious assertion: that the reason Jefferson changed the date on the manuscript from 1785 to 1782 was to “create the impression that the book had been completed before” Price’s 1784 pamphlet. But that can hardly have been his purpose, because he only added that date to the manuscript that remained in his possession after the book was published. Every version ever printed had 1785 or later displayed prominently on the title page, making it impossible for Jefferson to deceive people—and there is no reason to believe that was his goal. The more likely reason for Jefferson’s use of 1782 was, as scholar Kevin Hayes explains, because he thought “[the] date of composition was more important than [the] date of publication,” and the bulk of the writing was done that year.
Not only is Forbes’s allegation of Jefferson’s duplicity unsubstantiated, but it also contradicts his larger thesis that Jefferson designed his arguments about black inferiority as part of an “adroit and devious” plan to “writ[e] Americans of African origin out of the great narrative of American liberty” (xlviii, lix). But if Jefferson was aiming to evade the mandate for emancipation, he would hardly have called slavery “unremitting despotism” and a “great political and moral evil,” let alone congratulated Price for his antislavery arguments (249, 145). Pseudoscientific racism certainly had the effect of denying black Americans the freedom to which they were entitled, but Forbes fails to prove that this was Jefferson’s aim, let alone that this motive explains the backdating of Notes.
Off to the east!
Autumn is on its way, and we have a lot of traveling coming up. We’ll be attending the Cato Institute’s annual Constitution Day event in D.C., followed by trips to Atlanta, Seattle, and elsewhere. Stay tuned!