There is May in books forever
Bureaucracy and democracy: are “We, the People” in charge anymore?
I spoke at ASU a few weeks ago about the Administrative State and how it relates both to freedom and democracy. I focused particularly on two cases now pending in the U.S. Supreme Court that will address some of these important questions (Loper Bright and Jarkesy)—as well as the now-classic California court ruling that said that bees are fish.* You can watch the video here:
The end of April meant also the end of my term holding the Goldwater Chair in American Institutions at ASU. The Goldwater Chair was established in 1977 to honor Senator Goldwater for his exceptional service to Arizona and the United States, and is awarded to scholars who uphold the principles of Americanism, individual freedom, and the free enterprise system. It was my pleasure to teach a class on The American Dream: Economic Liberty as an American Institution, in which we examined the historical and philosophical origins of economic liberty, and its cultural and legal effects on American civilization and law—just as you would if you were conducting a class on the history and background on free speech or religious freedom. It was a great honor, of course, to serve in this role, and I’m grateful to ASU’s Center for the Study of Economic Liberty and SCETL for hosting me.
*-by the way, I did make one mistake in my talk. The California courts did not rule that ordinary honeybees are fish. They ruled that bumble bees are fish. I acknowledge the error and regret any harm my words may have caused.
Talking DEI—and the freedom to fail—with Armstrong & Getty…
A couple weeks ago, I joined the Armstrong and Getty Show to talk about DEI…and as is our wont, we meandered from the topic and ended up talking about whether gambling should be illegal. Ignore the fact that my voice sounded like Howlin’ Wolf, as I was fighting a losing battle against seasonal allergies, and check it out here.
…and the homelessness case with the Federalist Society and WSJ
I had an article in the Wall Street Journal last week about the homelessness case before the Supreme Court, Johnson v. Grants Pass. Excerpt:
Johnson v. Grants Pass (2022), and another Ninth Circuit ruling, Martin v. Boise (2018), declared it unconstitutional to arrest people for camping on sidewalks if a city’s homeless population exceeds the number of beds available in its homeless shelters. The appeals court’s reasoning went like this: Supreme Court precedent says it’s “cruel and unusual” to punish someone for doing something he can’t help doing, and if there aren’t shelter beds available, then anyone who sleeps on the streets or public parks is doing so “involuntarily.”
That makes no sense. A person who drives drunk and crashes his car can’t claim he acted “involuntarily” because the city didn’t arrange an Uber ride for him. If a poor person mugs a passerby to get money for food, he can’t plead not guilty on the theory that the government’s failure to give him a meal makes his crime “involuntary.”
I also joined the Federalist Society’s Seat at the Sitting series to preview the oral arguments. You can watch that here:
The argument itself was on April 22, and afterwards, I offered some thoughts here:
Protecting economic liberty under state constitutions
I spoke at the Cato Institute a couple weeks ago about litigating for economic freedom under state constitutions. What are the opportunities and unique challenges of doing this? I discussed this with Anastasia Boden of Cato and Anthony Sanders of IJ, and you can watch the video here.
The future of school choice in Arizona
George Will was kind enough to quote me in his column a few weeks ago discussing school choice in Arizona—and efforts by Democrats to destroy it.
Judgment at Tokyo
In my latest book review for The Objective Standard, I look at Gary Bass’s book on the post-World War II war crimes trial in Japan. The trial isn’t well remembered in the United States today, but as Bass shows, it’s certainly remembered in Asia—and for good reason: despite its many shortcomings, the trial represented a chapter in world history when the world’s democracies took seriously the idea of defending civilization against savagery. While the Nuremberg Trials are today viewed as mostly successful in that respect, the Tokyo trial has a more mixed record. Excerpt:
Then there was the immense dissent by India’s Judge Pal, which endorsed the defendants’ contention that Japan had not aimed to conquer Asia, but only to “liberate” it from European colonialism. The reality is that the empire annexed some three million square miles of Asia and enslaved perhaps one-hundred and fifty million of its people, whom the Japanese considered racially inferior. But imperial leaders claimed they were only trying to unify Asia and free it from Western domination—and Pal apparently agreed. At the trial, former Japanese Prime Minister Tojo Hideki—the highest-ranking and most unapologetic of the accused—insisted his government’s true purpose had been to free Asia from “the oppression of western powers.” Pal accepted this argument, affirming that Japan was simply “defending itself” against the West when it invaded China, Korea, Burma, Thailand, Cambodia, Vietnam, Malaya, Singapore, the Philippines, and other countries, and downplayed such atrocities as the Rape of Nanking and the Manila Massacre.
In fact, although Bass doesn’t say so, Pal’s line of thinking not only affirmed the Axis view of the war, but also anticipated today’s fashionable “antiracist” ideology, which regards Western civilization as inherently “oppressive” and excuses non-whites for whatever crimes they might commit against Europeans (and, predictably, Jews). “Imperial Japan portrayed itself as an army of liberation, driving out white and wicked European empires under the slogan ‘Asia for the Asiatics,’” writes Bass. “Japanese intellectuals promised a wholly new order from that of the ousted white supremacists: rejecting a rationalist, materialist, capitalist, and imperialist Western world for a soulful, holistic, and traditional Asian civilization.” In other words, like today’s “Critical Race Theorists,” the empire employed the language of victimhood and “resistance” to veil its own essentially racist and primitivist nature. Pal blithely ratified this view, even characterizing the Japanese government’s official racism as “a necessary measure of protection for their own race.” Of course, the Nazis had said the same about their own anti-Semitic Nürnberger Gesetze (Nuremberg laws).
The perversity of his way of seeing things was perfectly encapsulated by the fact that he ended his dissent by quoting a politician who said that the cause defeated in war would be vindicated in peace “when time shall have softened passion and prejudice.” These words were more revealing than Pal supposed: The politician was Confederate President Jefferson Davis.
Join us in Atlanta this summer!
In June, I’ll be speaking at LevelUp 2024 (that’s what they’re calling TOS-Con, nowadays) in Atlanta, about one of the most interesting pieces of music ever written, Antonin Dvorak’s “From the New World.” I’ll explain the history of the symphony and how it has spoken for generations of people—both Americans and others—about the promise of a new and more human future. I hope you’ll join us.
Why I am not an Originalist
I signed a publication agreement this month with the Charleston Law Review to publish my article Originalism and the Illusions of Objectivity, which criticizes Originalism as a method of constitutional interpretation. I long ago stopped calling myself an Originalist, but I’ve never explained why in print before, because there were a number of questions I wanted to think over first. I think I’ve finally pinned down at least some of those questions—and I’m prepared to “publish and be damned.” So you can read the current draft of the paper at SSRN.
Honoring the architect of democracy
This month marked the centennial of the death of Louis Sullivan, the great architect known as the “father of the skyscraper.” Last year, I went on a bit of a Sullivan pilgrimage, touring his glorious Auditorium Building, visiting his Carson-Pirie-Scott store, and checking out his National Farmer’s Bank in Owatonna, Minnesota, which may be the most beautiful room in America.
Sullivan didn’t invent the skyscraper; that title should probably go to William LeBaron Jenney, who introduced steel-frame architecture. But Sullivan invented the aesthetic of the tall building, insisting that they should be “proud and soaring things” instead of pretending to be short. Alas, magnificent as Sullivan’s artistic achievements were, he died lonely, bankrupt, and alcoholic. In an article for Discourse, I discussed the tragedy of his life and the triumph of his art. Excerpt:
Sullivan was one of the greatest of American artists. Dedicated, like his hero Whitman, to voicing the ideals of a vibrant dawn of freedom, it’s no coincidence that, just as Whitman’s poetry rejoiced at the bustling modern world of tradesmen, mechanics, “houses of business of the ship-merchants and money-brokers,” so Sullivan’s American art would be focused primarily on commercial structures—office buildings and banks—which served as the cultural and civic engines of the “thrillingly sane” civilization Sullivan wanted to honor.
I Gotta Right to Sing the Blues
I was lately reading a couple books about Louis Armstrong; Terry Teachout’s magnificent biography of him and Louis Armstrong: Master of Modernism by Thomas Brothers. It’s really incredible that Armstrong’s recordings are about 100 years old now, and they still sound as fun and fresh and beautiful as they did when they were brand new. For example, his “I Gotta Right to Sing The Blues” is 91 years old now, and the only way you can tell it wasn’t recorded today is because it’s so much better than most of today’s music:
One thing both authors point out is that Armstrong is really at his best when playing the blues, more than when playing what we now call “jazz” (a term whose origin and meaning are much in dispute). Satchmo’s “Dippermouth Blues” or “Back O’ Town Blues” are just marvels of American music, and while that might seem obvious, it’s also one of those things that can’t be said enough.