To find the winter's dream come true
It’s April—Poetry Month—which brings to mind this article I wrote some time ago comparing T.S. Eliot’s and E.E. Cummings’ different attitudes toward April. Probably time to crack open a volume of Cummings if you haven’t lately. But first—
How Justice Alito out-Orwells Orwell
The UnPopulist asked me to say a few words about Justice Samuel Alito’s astonishing remarks during the arguments in the NetChoice cases—in which he likened Twitter deleting a tweet to the government imprisoning anti-war protestors during World War I. As I explain, the fundamental difference between the two is the presence or absence of physical coercion, and that distinction isn’t just obvious, it’s also crucial to freedom in our constitutional order. Excerpt:
If the public/private distinction were eliminated, the U.S. would become, not a free and diverse country, but a uniform, totalitarian state. If magazine editors, or the owners of YouTube or TikTok, were required to follow the same neutrality principle that the Constitution imposes on the government, then their magazines or websites would effectively become arms of the government, not private organizations free to choose what to do with their own property.
This distinction—where the government must follow the Constitution, while the people must obey the law—is so old, it’s even reflected in our language. The word “censorship” refers to the coercive silencing of speech, which means that, properly speaking, only government can engage in censorship. (Samuel Johnson, in his 1755 Dictionary, and Noah Webster in his 1828 version, defined “censor” by reference to the “officers”—government officials—in ancient Rome, whose job was to monitor the manners of citizens.) Private citizens, by contrast, cannot censor. When a newspaper editor rejects an article that a columnist submits, that’s not censorship—it’s just what editors do.
At the office: homelessness, public records, and the Indian Child Welfare Act
The Goldwater Institute filed a brief in the big case about homelessness that the U.S. Supreme Court will hear in April. You can read about that here. We also filed a brief in an Arizona Supreme Court case about what kinds of documents the government must give citizens under the freedom of information laws, and Imprint News carried a profile of Mark Fiddler, an attorney whom I’m proud to be working with on a case in Minnesota involving the Indian Child Welfare Act.
The past, present, and future of the Arizona Constitution’s Gift Clause
I recently published two articles about the Arizona Constitution’s Gift Clause—that’s the provision that forbids the government from subsidizing private enterprises. In the first article, which appears in the new issue of the Regent University Law Review, I examine the history of the clause, from its origins in the 1840s to the present day. It turns out to be more interesting than one might think; involving the bankruptcy, in more than one instance, of entire states. After a series of calamitous investments in railroads, canals, and other businesses, states adopted constitutional provisions to restrict both state and local governments’ ability to fund private undertakings. And the prohibitions applied not only to outright payments, but even to such indirect forms of aid as tax exemptions. These were particularly controversial in western territories such as Montana and Arizona—and led to Arizona adopting the strictest constitutional prohibition on corporate welfare ever written.
In the second article, which appears in the new issue of the Drexel Law Review, I look at the Gift Clause in the present day: how courts have interpreted it, and how they ought to interpret it in future cases, especially those involving indirect subsidies such as schemes to eliminate taxation for crony developers. These articles together represent the first-ever comprehensive look at the origin and application of one of the most important taxpayer protections in American law.
Springing up this month
I’ll be speaking at the University of Houston Federalist Society on April 17 about economic liberty and the Constitution, and the Orange County (CA) Lincoln Club on April 24 about some of the cases now before the U.S. Supreme Court. Plans are also in the works for an online discussion of the Grants Pass case, which will be argued on April 22—and of course my class at ASU on the American Dream will be wrapping up at the end of this month, along with my term holding the Goldwater Chair in American Institutions. It truly has been one of the most touching honors of my life to have been selected for the Goldwater Chair, and I’ll missing hanging out with the students…and the snakes! (See the February update if you don’t get that reference.)
Tord Gustavsen
During a recent visit to Sacramento, I had the good fortune to hear the Tord Gustavsen Trio in concert at the Mondavi Center—not once, but twice. The Norway-born Gustavsen is my favorite living jazz musician; his trio is distinctive for its extremely soothing and graceful sound, particularly in their initial trilogy of albums, Changing Places, The Ground, and Being There. Gustavsen’s music is heavily informed by religious music, especially Bach, and by poetry; the lyrics of his album Restored, Returned are even drawn from W.H. Auden. This suggests the spiritual and serene quality that his music sometimes evokes—by which I don’t mean to imply that his band can’t swing; they definitely can, and do, on such tunes as “Blessed Feet,” “Curtains Aside,” or “Schlafes Bruder,” the latter being an adaptation of a piece by Bach.
In recent years, Gustavsen’s music has tended to get a little too abstract for my tastes, particularly the contributions of his new bassist, Steinar Raknes, whose introduction into the band comes at a time when Gustavsen seems more inclined toward a fusion-style adaptation of electronic sounds into his songs. The result is a music that sometimes seems to vaporize into plotless crescendos and, so to speak, elaborate “walls of sound.” In these, the melody is lost, and with it, my attention. But this kind of thing can work when it serves as a background from which the band can emerge with one of its more structured and melodic pieces.
The Friday concert was a little too much on the abstract end of the spectrum, with a lot of this cloudy, electronic-inflected sound. I was, frankly, disappointed. But all was forgiven the next night, when the trio played a string of their best works, older and newer—and not only that, but manipulated them in new and fascinating ways. It’s hard to describe—especially since I don’t know technical musical terminology. But there were moments, especially in their version of “The Ground” (probably their single most beautiful song), when they seemed to shift into a warmer, more magnanimous, tone—creating a sound more like the tone of grateful maturity; as though one has transcended obstacles and emerged truer and readier for future challenges. There were moments of such surpassing beauty that everything else seemed to vanish. It was like a meditation—a descent into a world with no clichés, no insincerity, followed by a knowing embrace of things too lovely to be unreal. It seems strange to call this jazz. It was more like the sound of stars.
As I mentioned, the trio’s music is introspective, often solemn—music to be savored, although it can also fit easily into a background, as unobtrusively as a Buddha statue in a Japanese garden. If you’re new to his work, I recommend starting with that first trio of albums, and listening to them all the way through a few times; Gustavsen enjoys bringing back melodies repeatedly in his songs, giving them a unifying quality that adds to your appreciation the more you enjoy it. But like many profound things, this music rewards concentration and invites you in, rather than grabbing you by the shirtfront. I would recommend starting with “The Ground”: