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.

 

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The Long View 2002-09-19: Historical Accidents

In general, John was a cautious advocate of George W. Bush, but he wasn't a fool.

The US will probably get its chance to change the regime in Iraq very soon. For myself, I am inclined to think that everyone is making a lot of fuss about a 72-hour raid. However, we might remember that Henry V's campaign in France was tactically brilliant, but a strategic failure.

John also had a better appreciation of economics than most critics of the war in Iraq.

One of the points often made about US Iraqi policy, and about US policy in that part of the world in general, is that it is based on nothing more than US desire for oil. This is true only indirectly. Certainly it is not the case that the US "wants Iraq's oil," as that country's hapless foreign minister recently put it. Actually, I suspect that the domestic oil producers with whom the Bush family is so familiar would like nothing better than that the Iraqi fields be capped and buried under ziggurats; peace and new oil fields could bring back the days of $18 per gallon crude. Nonetheless, it is true that the US is so interested in the Middle East because the world has a petroleum economy. It does not follow, however, that a non-petroleum economy would mean a peaceful world, or even a peaceful Middle East.

The oil boom brought about by fracking is a consequence of $100 a barrel oil. We get oil from Saudi Arabia for the same reason we get electronics from China: the importers save a few cents on each transaction, which adds up in a big country like ours. Nonetheless, what happens in the Middle East influences oil prices, which affect the US economy and US citizens, so US politics pays attention.

Finally, imagine a "Green" world, in which renewable energy is not the unreliable, capital intensive monstrosity that it is in our world, but in which people in developed regions live in "frugal comfort" on sunflower oil and electricity from windmills. That would mean that many regions would be an order of magnitude poorer and more chaotic than they already are. Without petroleum exports, the whole Middle East would be Afghanistan.

With the death of the king of Saudia Arabia, many have wondered whether time has come for the US to cut our ties with the Saudis. If we were able to successfully extricate ourselves from the Middle East, it would require a big change in both US politics and our economy. While difficult, the changes seem plausible. These changes would mean the end of the petrostates all over the world. However, the big question is whether the Middle East would again be a sleepy backwater, or would explode in violence from desparation.

Historical Accidents

 

George Bush is rarely compared to Shakespeare favorably. Still, all through the president's address to the United Nation's General Assembly last week, I could not help thinking of the oration early in Henry V (Part II). That is when the bishop explains that, by any reasonable interpretation of the Salic Law, young King Henry was the rightful king of France. George Bush made an argument of much the same order to the Assembly, using UN resolutions instead of Merovingian constitutional law. The difference between George and Henry is that the people whose cooperation George needs, both foreign and domestic, all seem to have found his argument persuasive. At any rate, they found it politic to say they did. The legal preparations for an Iraqi campaign began in earnest.

The supposed concession by the Iraqi government to unconditional inspections was long predicted and well timed, from their point of view. However, the initiative does nothing to alter the course of events.

They did the same thing just before the allied offensive in 1991, but too late to have any effect: the resolutions from the Security Council and the US Congress were already in place and military action was at the discretion of the executive. By making the ploy now, they have at least the potential to slow down the political process by some weeks. However, it became immediately apparent that unconditional inspections would have conditions. One reports says that only sites designated by the Iraqis as military bases would be open to inspection. Another says that the Iraqi negotiators have already said that Hans Blix, the head of the UN inspectors, is a "spy." Even the UN will not tolerate being made to look so foolish so soon.

The US will probably get its chance to change the regime in Iraq very soon. For myself, I am inclined to think that everyone is making a lot of fuss about a 72-hour raid. However, we might remember that Henry V's campaign in France was tactically brilliant, but a strategic failure.

 

* * *

One of the points often made about US Iraqi policy, and about US policy in that part of the world in general, is that it is based on nothing more than US desire for oil. This is true only indirectly. Certainly it is not the case that the US "wants Iraq's oil," as that country's hapless foreign minister recently put it. Actually, I suspect that the domestic oil producers with whom the Bush family is so familiar would like nothing better than that the Iraqi fields be capped and buried under ziggurats; peace and new oil fields could bring back the days of $18 per gallon crude. Nonetheless, it is true that the US is so interested in the Middle East because the world has a petroleum economy. It does not follow, however, that a non-petroleum economy would mean a peaceful world, or even a peaceful Middle East.

Let's do some alternative history:

 

Imagine we had come to the year 2000 with economic autarky and political isolation as the dominate principles of statecraft. That was, pretty much, what happened in the 1930s. It proved to have certain drawbacks.

Imagine another world, one that embraced nuclear power as soon as it became available. That is, in fact, the only currently feasible alternative to a petroleum economy; the French made just that choice, and it worked very well for them. Such a world, however, would require a shoot-on-sight non-proliferation regime far larger and more rigorous than the one we have now. There would be an Iraq-type crisis every few years.

Finally, imagine a "Green" world, in which renewable energy is not the unreliable, capital intensive monstrosity that it is in our world, but in which people in developed regions live in "frugal comfort" on sunflower oil and electricity from windmills. That would mean that many regions would be an order of magnitude poorer and more chaotic than they already are. Without petroleum exports, the whole Middle East would be Afghanistan.

Oil is only an occasion, not a cause. At this stage of history, global terrorism and wars to contain it are inevitable. Technology has made the world just a day or two across by commercial jet. Resentment, ambition, and need flow with few restrictions over a world that has not yet developed the institutions to manage the situation. The really scary thing is that ours may be the best of all possible worlds.

 

* * *

Cantor Fitzgerald, the bond-trading firm that suffered the worst casualties in the attack on the World Trade Center, has issued a report criticizing the calculations of the Victim's Compensation Board, which is supposed to award settlements in lieu of litigation to the survivors of the victims of 911. (Can we say, "September 11," or has that become confusing now that another September 11 has passed?) The report points out that the fund is operating more like a welfare fund than like an arbitrator in a wrongful death suit. Cantor Fitzgerald's staff was young and very highly paid; the average payouts of one and a half million dollars that the fund anticipates is really just a fraction of what the survivors of such people would receive in the courts. The report says that this is not fair.

Yes, it isn't fair. Murdering all those people certainly was not fair. It also is not fair that there is not enough money in the world pay off all the theoretical claims that could be made for 911 in lower Manhattan. I have seen figures as high as half a trillion dollars. You could rebuild all of Manhattan for that. Awards of that magnitude would wreck the world's insurance system and bankrupt several government entities. As a matter of fact, the victims' survivors have the option of pursuing their claims in court, but it will be intolerable if any large number of them do so.

There is something that the authors of the Cantor Fitzgerald report seem not to understand; neither do many of the other survivors, or even their attorneys. Tort damages are not a civil right. The tort system is a government service, one that is helpful and even necessary for society in normal times. In abnormal times, when there is war or natural disaster, the rules of liability are suspended. This is not a new idea. The law has always worked this way; it has to.

We must ask ourselves: suppose there is a next time, and a time after that?

Copyright © 2002 by John J. Reilly


Why post old articles?

Who was John J. Reilly?

All of John's posts here

An archive of John's site

The Long View 2002-02-19: Show Trials

Thomas Sowell wrote a book that this blog entry brings to mind, The Quest for Cosmic Justice. Sowell argued that the search for ultimate justice always seems to end in even greater injustice. I tend to see Sowell's argument in Thomistic terms now. We fallen creatures cannot ensure perfect justice, because we are not perfect. We have to pursue worldly justice, because that is all we are really capable of. Furthermore, it isn't really our job. Vengeance is mine saith the Lord.

Slobodan Milosevic eventually died in prison, four years after John wrote this. Presumably, he has gone to his just reward.

Show Trials

I knew that the International Criminal Tribunal for the Former Republic of Yugoslavia (ICTY) was jinxed when I heard Mary Robinson explaining the indictments. Once the president of the Irish Republic and now the UN High Commissioner for Human Rights, she is one of those invaluable public figures whose mere presence signals that something stupid is happening. In this case, she explained that, no, no one could plea bargain with the accused, notably not with Slobodan Milosevic, who was still in power and arguably willing to trade exile for amnesty. She insisted to some plainly flabbergasted journalists that the ICTY existed to do Justice, universally and irreformably.

In due course, President Milosevic was thrown out of office by his own exasperated people. Eventually, he was delivered to the Hague to stand trial for war crimes, crimes against humanity, and the violation of various Geneva Conventions. Speaking in his own defense, last week he used the televised proceedings to turn the tables on his accusers. NATO, he said, had deliberately targeted civilian infrastructure during the Kosovo War, acting with wanton indifference to civilian casualties. He said that the West caused the breakup of Yugoslavia by the meddlesome recognition of the independence of the breakaway Republic of Croatia. Milosevic demanded that the leaders of the nations responsible for these things be called to testify.

It was quite a performance. The sufferings of the Serbs over the last ten years were largely of his own manufacture, but there was just enough truth in his description of the policies of NATO and the West to make it impossible to dismiss. His oratory did nothing to answer the well-founded charges against him, but it did give heart to his supporters back home, and indeed to the enemies of international order everywhere. This is not a good thing.

It's also not the first time this has happened. The model for the ICTY was the tribunals established by the victorious Allies after the Second World War. The particular precedent for the trail of Milosevic was the Nuremberg Trial of the surviving Nazi leadership in 1946. Few men were ever hanged with greater justice than the defendants in that proceeding, but the star of the show was Hermann Goering.

The prosecution did not quite lose control of the trial, but those who saw the proceedings were shaken. Goering spent most of the Nazis' dozen years in power shooting morphine, dressing up in opera costumes and stealing works of art; he was almost too zoned to notice when Germany lost the war. Confinement awaiting trial on capital charges, however, cured him of his addictions and concentrated his mind wonderfully. He forcefully argued that the court had no legal foundation and that the Allies' defense of human rights was hypocrisy. As with Milosevic today, his defense did not really address the charges, but it laid the groundwork for a future defense of the regime. The only book I have ever read by David Irving was a biography of Goering, which says the prosecution did lose control of the trial. (Irving has his own blog, by the way; you have to wonder about these people.) The effect of Goering's performance was limited, because it had to pass through the press. That, of course, was before such events could be televised.

The theoretical basis for international tribunals is still often shaky, particularly when their jurisdiction is mandatory, and most especially when the law they are supposed to apply is criminal. However, the international system has slowly been answering the questions about sovereignty and the sources of law that the existence of such courts raise. An issue that has never been addressed, at least to my knowledge, is this: when the defendants are former heads of governments or responsible ministers, they simply are not subjects, but sovereigns.

International criminal law is based on the limitation of the traditional scope of sovereign immunity, under which heads of government could not be held liable for their actions in any foreign court. The limitation is not unreasonable, but it does not change the fact the sovereigns are still sovereigns. Officials who have exercised sovereign power in a way contrary to international norms are not being tried for breaking a law, as ordinary subjects would be before a domestic court. Rather, sovereigns are tried for bad policy. Furthermore, they are tried by their peers, by other sovereign powers. Even the world-sovereign that sometimes flickers into existence in international forums is still no higher in the scheme of things that the sovereign being tried.

Usually, when defendants are tried in criminal cases, they are not permitted to argue that the law they are accused of breaking was a bad idea. That, however, is precisely the kind of argument that the sovereign officials must be permitted to make. They have been called to account in a political dispute, so naturally they talk politics back. Their appeal is not only to the tribunal, or even chiefly to the tribunal. They speak to their own constituents.

I am not one of those people who think that the idea of international law is incoherent. There is even something to be said for international criminal tribunals; someone has to hang these people. Nonetheless, these prosecutions are a disaster looking for a place to happen.