The Long View 2003-06-27: Terminal Decisions

I am definitely not an expert in Constitutional Law, but I do like the idea John floats here that in a democratic system like ours, the People ought to be able to do any damn fool thing they please that isn't specifically prohibited by the Constitution.

Terminal Decisions

The Supreme Court has been up to its old tricks again, I see. Here are a few comments:

Regarding this week's decisions about the affirmative-action cases from the University of Michigan, it would have been very uppity for the Court to strike down almost all the affirmative action programs across the country, even those that use ethnicity as only one factor. Affirmative action as it exists now, of course, is a terribly corrosive institution, for reasons ably stated in Justice Thomas's dissent. (The dissent was from Sandra Day O'Connor's opinion upholding the Michigan law school's program, which used the "just-one-factor" procedure.) Even worse, it's run by a parasitic racket that has its suckers firmly implanted into the personnel department of every major institution in America. Nonetheless, in a democracy, the people should be allowed to do pretty much any damned-fool thing they please, unless it clearly conflicts with the text and history of the Constitution. All the Constitution really forbids is the maintenance of a government-supported set of apartheid institutions. That is what Brown v. The Board of Education decided. So, if the people please to run racializing patronage programs, that is their privilege.

The appalling quota system at the Michigan undergraduate school was struck down in an opinion by Chief Justice Rehnquist. This really was not much of a surprise, but it simply perpetuated an anomaly. There is no principled difference between the undergraduate school's program, which awarded 20 points toward admission just for being a member of the right ethnic groups, and the law school's system of burying race among a group of other facts. The true conservative decision would have been to approve the point system, too. Then the people and the legislature of Michigan would not have been able to disguise from themselves what is going on.

And what about the decision striking down the Texas anti-sodomy law? Sodomy, like adultery, has always been one of those things that it never made much sense to criminalize. Prosecutions are necessarily selective, and those prosecutions that do occur are just tabloid-fodder. That said, though, a narrowly-drawn law like that in Texas should fall within the range of "any damned-fool thing the people please" for purposes of Constitutional validity.

The Texas decision does not transform the Republic into Sodom or Gomorrah. (Just what were people up to in Gomorrah? No good, I'll warrant.) For better or worse, it is reasonable to expect that elite opinion about homosexuality will flip again within a generation, as it did 30 years ago; these reversals of moral polarity just don't last. The disturbing thing about this decision is that it overturns an earlier ruling by the Supreme Court simply on the basis of a change in the cultural climate, and particularly in that rarified stream of the cultural climate which wafts through the Supreme Court. Sandra Day O'Connor's opinion in the Michigan law-school case was in the seem spirit. Though her result was more defensible, she was very concerned about the role of race in American life and the needs of institutions, but only incidentally with what the Constitution said or meant. "Context" was everything. The only part of the Constitution that counted was the bit that established the Supreme Court. The important trend today is that the dominant view among Constitutional jurists is that this an an excellent way to run a legal system.

For that reason, the most sensible thing anyone said about the Supreme Court was by Democratic presidential candidate, Richard Gephardt, just before the decisions in the Michigan cases were announced:

"When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."

He has been apologizing for this ever since. No doubt he meant that he would use the power of the presidency in whatever legal space the Supreme Court left him. In fact, though, he prophesied unknowingly. If Constitutional jurisprudence means nothing more than measuring the temperature of the Zeitgeist, then Congress can do it better; so can the president alone. The fact is that constitutional judicial review has always existed at the sufferance of the political branches of government. As a practical matter, a presidential executive order would be quite enough to block the implementation of a Supreme Court ruling, if Congress were willing to let the president get away with it. When that happens, a Democrat is more likely to do it than a Republican.

The restriction of the plenary power of judicial review will be quite compatible with orderly, constitutional government. Still, some days we will miss the loss of the Court's authority. Another decision from the Court this week threw out a California law that extended the statute of limitations for prosecutions involving child molestation, even for cases in which the old limit had already passed.

As we know from the Simpsons, when the people of Springfield are about to make some stupid collective decision, someone will ask: "Won't someone please think of the children?" The abuse of children is a terrible thing, but it no more merits passing ex post facto laws than do other serious crimes. You really don't want legislatures abolishing statutes of limitations. They are why you can throw away your tax records after seven years.

* * *

My latest anthology, The Perfection of the West, has just become available. I describe it at length on its own page, so I will not tax you with further promotion here. Suffice it to say that the book brings together the arguments I have been making about the historical trajectory of the West. The moral is that the terminal Empire is neither tragic nor nihilistic. History ends nobly. Please rise to the occasion.

* * *

Something I would like to discuss is the publication process. The Perfection of the West is a print-on-demand book, like my earlier anthology, Apocalypse & Future. As you no doubt know, print-on-demand means that copies of the book are printed only as they are ordered. This has two advantages. First, the only up-front costs are for laying out the book. Second, the book never goes out of print; it can be ordered at any time. The great drawback is that it is almost impossible to get bookstores to stock the book, since the store would have to pay for its copies to be produced.

Self-publication is rarely profitable, but there are circumstances under which it is at least tolerable. Self-publishers should have some pre-existing venue for their work. This website is good enough. Even better would be a classroom, where a teacher could use a self-published text that did not interest a conventional academic publisher.

That's the theory. Here's my experience:

There are several print-on-demand publishers. The one I am using is Xlibris. When my earlier anthology was published, I used the basic-service option, since the book was plain text. Layout was substantially free; no doubt the idea was that authors would order enough copies of their own works to make the layout worth the publisher's time. Today, however, there is a $500 fee even for plain-text books. That makes The Perfection of the West the first work I have ever paid to self-publish.

There are irritating features to the production process. Xlibris offers as much editorial help with a book as the author is willing to pay for. The costs for proofing and hand-holding can soon bring the cost of publication close to those charged by a traditional vanity publisher. For most authors, I suspect, the point of the exercise is to avoid that, so the basic option allows authors to act as their own editors. Xlibris then handles only layout, and they do a pretty good job. The problem is that Xlibris charges fees for changes an author makes after a manuscript is submitted. In effect, authors are penalized for each correction they make.

I am a good technical editor, so I was better off than most people in this position. However, the procedure made my blood boil. And the production process is slow. It can take weeks for Xlibris to deliver a new set of proofs (as a pdf file), even if the last set of corrections was trivial.

There are problems with ordering and delivery, too. Anyone who orders The Perfection of the West will find that it takes two or three weeks for the book to arrive. Additionally, at this point, the book can be ordered only from Xlibris; it will take two or three months before the book is available through Amazon and Barnes & Noble Online.

On the whole, though. I am reasonably happy with the outcome. Print-on-demand allows a writer like me to stop pestering publishers with the argument that it is the their duty to civilization to publish some work with a real but limited audience. Sometimes the argument actually succeeds. Then a few hundred copies are printed, most of them soon to be pulped and remaindered. Fewer people might see the book than if it were always available through print-on-demand.

So you see, the world really does approach perfection.


Why post old articles?

Who was John J. Reilly?

All of John's posts here

An archive of John's site