29 August 2015

"Heck of a Job, Brownie"

Ten years ago today, every resident of New Orleans was given a horrifying example of why the kneejerk "all government is bad" ideology that has been mainstream among the Heffalumps (and a constant consideration among the Jackasses) is not only dumb, but counterproductive. Lesson not learned: Louisiana Heffalumps still spew forth the same doctrine (except, that is, when announcing government contracts that will provide local jobs... and make their campaign donors a pile of cash).

Of course, things were not helped in the aftermath by the nepotism and incompetence of that administration. Had an actual review of appointees for something other than loyalty and ideological purity been anything close to what was occurring, perhaps New Orleans would be better (and more equitably) rebuilt by now. Perhaps... because there have been a lot of other barriers, too.

23 August 2015

Only One Puppy Adopted (But He's a Really Cute Mongrel)

... whether "sad" or "rabid."

The 2015 Hugo Awards were announced last night. Congratulations to the winning works and their creators; I'd ordinarily offer congratulations to all of the nominees, but not this year (and last year only in part): The ballots were as appropriate and representative as a Soviet-era ballot. Not that this is entirely unknown to popular-awards ballots — the Hugos, in particular, have an "acceptable to the Central Committee" flavor reminiscent of Dixie prior to the Civil Rights Act, in that fiction from "literary" imprints must sit quietly on a different part of the bus — but this year it was particularly egregious.

So, then, how about some alternate history of dubious factual specificity that nonetheless has some interesting implications? Let's pretend, just for a moment, that inclusion on either of the yapping curs' slates — or being written by a yapping cur — was actually disqualifying from the ballot (whether or not that particular item got onto the final ballot), in the same manner as "actually published the previous year by a small press/self-publishing effort" is (and took two works off this year's ballot!). n.b. Unfortunately, there's a "guilt-by-association" issue here, too: Although two of the authors whose works appeared on the slates later disavowed the slates and turned down the nominations, the available data simply doesn't allow that distinction.

This still requires a couple of additional caveats:

  • Unfortunately, it's impossible to figure out which nominating ballots were only partially canid, or anything else like that. Fortunately, the nominating ballots are all equal-weight-per-mention rather than weighted voting, so this particular rabbit hole doesn't go all the way to the center of the planet.
  • As a cross-check, I've arbitrarily established a cutoff of 90% of the mean of the last two WorldCons (London and San Antonio) as the minimum to get on the ballot; otherwise, we might be going off into a fight between a handful of nominations to become a finalist (especially if I extended this further to other categories). I set this cutoff before looking at the data. I've also ignored the "5% rule" due to the ballot-stuffing effect of the yapping curs... and further because it's both a particularly stupid rule designed to keep unusual sources off the ballot and is misleading when comparing US-based and non-US-based ballots.

What might the mange-free 2015 Hugo ballot for literary works/creators (that is, no "fan awards", editors, or such) have looked like? Remember, this is a starting point for possible discussion and nothing more; it is no more definitive a statement of events than, say, an alternate history in which an isolationist demagogue keeps the US out of the 1939-45 portion of the Second Thirty Years' War. Synthetic "nominees" are listed in alphabetical order by author/source, with the number of nominations in parentheses.

Novel (calculated cutoff: 97; 3 other eligible works exceeded this cutoff; actual ballot this year required 210)

  • Katherine Addison, The Goblin Emperor (256)
  • Robert Jackson Bennett, City of Stairs (150)
  • Liu Cixin, The Three-Body Problem (210)
  • Ann Leckie, Ancillary Sword (279)
  • John Scalzi, Lock In (168)

Novella (calculated cutoff: 71; 2 other eligible works exceeded this cutoff; actual ballot this year required 145)

  • Nancy Kress, "Yesterday's Kin" (103)
  • Ken Liu, "The Regular" (104)
  • Mary Rickert, "The Mothers of Voorhisville" (83)
  • Patrick Rothfuss, "The Slow Regard of Silent Things" (124)
  • Rachel Swirsky, "Grand Jeté" (95)

Novelette (calculated cutoff: 49; no other eligible works exceeded this cutoff; actual ballot this year required 72)

  • Tom Crosshill, "The Magician and Laplace's Demon" (54)
  • Ruthana Emrys, "The Litany of Earth" (54)
  • Thomas Olde Heuvelt, "The Day the World Turned Upside Down" (72)
  • Seanan McGuire, "Each to Each" (69)
  • Kai Ashante Wilson, "The Devil in America" (65)

Short Story (calculated cutoff: 34; 3 other eligible works exceeded this cutoff; actual ballot this year required 132)

  • Aliette de Bodard, "The Breath of War" (73)
  • Amal El-Mohtar, "The Truth About Owls" (48)
  • Eugie Foster, "When It Ends, He Catches Her" (44)
  • Max Gladstone, "A Kiss With Teeth" (41)
  • Ursula Vernon, "Jackalope Wives" (76)

Graphic Story (calculated cutoff: 24; 8 other eligible works exceeded this cutoff; actual ballot this year required 60)

  • Matt Fraction & Chip Zdarsky, Sex Criminals 1, "One Weird Trick" (60)
  • Brian K. Vaughan & Fiona Staples, Saga 3 (110)
  • Brian K. Vaughan & Fiona Staples, Saga 4 (59)
  • Kurtis J. Weibe, Laura Tavishati, Roc Upchurch, & Ed Brisson, Rat Queens 1, "Sass and Sorcery" (64)
  • G. Willow Wilson & Adrian Aldona, Ms. Marvel 1, "No Normal" (145)

Long-Form Dramatic Presentation (calculated cutoff: 125; no other eligible works exceeded this cutoff; actual ballot this year required 204)

  • Don Hall & Chris Williams, Big Hero Six (183)
  • Bong Joon-Ha & Kelly Masterson, Snowpiercer (131)
  • Christopher McQuarrie, Jess Butterworth, John-Henry Butterworth, & Doug Liman, Edge of Tomorrow (204)
  • Christopher Markus, Stephen McFeely, Anthony Russo, & Joe Russo, Captain America [2]: The Winter Soldier (295)

Short-Form Dramatic Presentation (calculated cutoff: 57; no other eligible works exceeded this cutoff; actual ballot this year required 71)

  • Agents of Shield, "Turn Turn Turn" (62)
  • Doctor Who, "Listen" (89)
  • Game of Thrones, "The Lion and the Rose" (61)
  • Orphan Black, "By Means Which Have Never Yet Been Tried" (71)

Related Work (calculated cutoff: 41; 1 other eligible work exceeded this cutoff; actual ballot this year required 206)

  • Jennifer Brozek, Robert Smith, & Lars Pearson, Chicks Dig Gaming (92)
  • Jim C. Hines, Invisible: Personal Essays on Representation in SF (79)
  • Brondon Sanderson, Mary Robinette Kowal, Dan Wells, & Howard Taylor, Shadows Beneath: The Writing Excuses Anthology (83)
  • Anita Sarkeesian, Tropes vs Women: Women as Background Decoration (77)
  • Jo Walton, What Makes This Book So Great (105)

John Campbell Award for Best New Writer (calculated cutoff: 46; 3 other eligible authors exceeded this cutoff; actual ballot this year required 106) (officially "not a Hugo" — yeah, right)

  • Wesley Chu (106)
  • Carmen Maria Marchado (61)
  • Andy Weir (95)
  • Django Wexler (55)
  • Alyssa Wong (80)

The most interesting aspect of the necessary follow-on discussion is "How much does guilt-by-association really matter in the arts?" Some of the yapping curs' nominees — especially in the dramatic presentation categories (one of which was the only puppy adopted this year) — are... puzzling. Indeed, there's almost nothing about the top three nominees at either length that fits either the stated political or the stated esthetic meme. Similarly, some of those slated withdrew, with various degrees of horrified self-abnegation (and those withdrawals have been respected here). There's also a serious "tunnel vision" problem; even if this were entirely about politics, one must still — somehow — resolve "Hymietown" and slave ownership when "honoring" specific people and efforts.

20 August 2015

Hairball

Donald Trump should be careful what he wishes for: If we do away with "birthright citizenship," we'll have to deport that thing on his head. I demand to see its long-form birth certificate immediately #BirtherTrumpsHair !

  • Leaving almost no opportunity unturned to create an implicit circuit conflict, the Sixth Circuit yesterday ruled that certain design elements are not inherent parts of cheerleading uniforms and therefore are eligible for copyright protection (PDF incl. dissent). Admittedly, the "useful articles" exclusion from copyright — a problem not found in many other nations' copyright law — is more than a bit obscure, especially in instances in which one must distinguish between the component parts (the fabric, eligible for copyright) and the product (the useful article, not eligible for copyright). The reality, though, is that this is an administrative law decision more than it is a copyright decision. Given the agency capture of the Copyright Office (and the unexamined question of whether a nonexecutive agency deserves Skidmore or Chevron deference, or whether any such deference is a consequence of the executive function), this was not the best possible rationale.

    If we take the Sixth Circuit's analysis at all seriously, we have yet another argument for moving the Copyright Office out of the Library of Congress. Of course, taking that analysis seriously in the context of cheerleading uniforms is a bit difficult.

  • So, then, why did the FBI spy on James Baldwin and get almost everything wrong? As to the first part, "gay black man objecting to WASP hegemony" is a more than adequate explanation. As to the second, "'FBI' and 'spy' have never mixed" is also a more than adequate explanation.
  • Last for today, a perhaps controversial note on a current nuanced issue. I am not in favor of the #BlackLivesMatter meme — not because they don't, but because it's bad rhetoric. It elevates a discernable segment to greater value by implication than other segments. And merely claiming that other segments can do the same thing — #LatinoLivesMatter, #LGBTQLivesMatter, #SemiticLivesMatter, #MuppetLivesMatter — reifies a distinction that we definitely should not be asking people carrying firearms to make. Indeed, we should be actively discouraging that distinction in all contexts: Not just when pointing weapons at them, but when pointing words and legislation and housing policy and community acceptance at them. #AllLivesMatter — and even when we don't succeed in that, we're obligated to try.

10 August 2015

Clogged

Nobody learned anything at the Heffalump Press Appearance and Pseudo Debate Extravaganzas last week. At least, nobody who had been paying attention prior to then. Moving right along...

  • Journalists (and their employers) are at least as capable of stupid knee-jerk reactions as anyone else. I've not yet read the Pentagon document... but unlike "The Editorial Board" of the New York Times, I actually have substantial experience dealing with the balance between "open press" and "actual — not just imposed by politicians — security needs of military forces operating outside the US." (Aside: That ascription to an anonymous management collective is one of the reasons that military officers distrust the press — whatever relationship we built up with a particular journalist can, and usually will, be overruled by someone on the basis of a far-off profit motive.)

    I'm all for more openness. I'm all for thorough reporting on structural problems, such as sexual misconduct at the military academies and corruption in procurement and contracting and political interference with tactical decisionmaking and equipment. Indeed, we need more of that. The mistake that the NYT has made here is the assumption that all journalists act with the integrity demanded (if sometimes not achieved, as demonstrated by Mr Glass not too long ago) by its own standards... and that's just concerning the US-based press. Acting otherwise in the field leads to (correct) charges of favoritism.

  • Kris Rusch offers some thoughts of her own on high discounting and the effect on royalties, which is rather superciliously (and not quite condescendingly) "refuted" in the comments by the president of a mid-major single-industry publisher. I reject the "refutation"... with an example from last year. Bluntly, this is an ongoing publishing-industries-accepted scheme, along with dubious export-import schemes, to deprive authors of money in the name of the managerial cost-control meme.
  • Mr Stewart, your shift at Arby's begins at 3pm this afternoon. Please be on time and conform to the grooming standards in your employee handbook. Make certain that you know how to make all of our off-menu items — especially the Daily Deli.
  • It could, I suppose, be much worse than Arby's. We could worry about fatbergs and sewers... and note the problem with "privatizing everything" implied in the article.

03 August 2015

The Blawgs of August

Leaving aside, for the moment, reality... and the seventieth anniversary of nuclear warfare...

  • From the Department of Unintended Ironies: Psychology Today published an article that opens:

    There is a growing and disturbing trend of anti-intellectual elitism in American culture. It’s the dismissal of science, the arts, and humanities and their replacement by entertainment, self-righteousness, ignorance, and deliberate gullibility.

    Consider the source. Consider even the purported "focus" of the source — an unscientific field of "study" that considers almost all deviation from the "mean" (usually established by hereditarily upper-middle-class white men) to be disorderly and probably dysfunctional at best. That's a bit much to spot on Monday morning, in the heavily antiintellectual Bay Area (where if one uses one's brain outside of work hours on tasks other than work, one is... ostracized at best).

    Thanks for spewing my coffee, you arrogant unselfaware gits.

  • David Byrne asks this morning's version of qui bono musica, pointing out that those who make recorded music are pretty uniformly not benefitting from its new distribution models. Neither are those who actually select and discover and curate the music. Unfortunately, the article doesn't reveal that the problem has little to do with technology, and everything to do with financial returns on financial capital being required to be "above market average" (cue the theme from A Prairie Home Companion, where all the children are above average and the royalties and fees paid performers are below average).

    Applying this to authors is left as an exercise for the student. The utterly insane student, that is, because a sane student already knows the answer.

  • A highly significant copyright decision last week truly exposes justice as blind. The Ray Charles Foundation's standing to object to (assertedly) dubious terminations of copyright was upheld by the Ninth Circuit (PDF). This is not a direct win for the Foundation (against Charles's disinherited children), but merely confirmation that it has the right to object that the termination notices were improper because the terminations — if allowed — would reduce its own income.

    This was a foregone conclusion under federal civil procedure law and the constitutional law of standing. Contrary to the bullshit put forth by stiffs-and-gifts mavens, estate planning is not all about minimizing taxes and following state law in state courts — especially when intellectual property is involved in the estate. Sadly, this is a particular problem in Tennessee (the purported "center" these days of music publishing and the music industry); those with long memories, or even just decent search skills, may recall the Andre Norton fiasco (which is still not entirely resolved). It's also a particular problem in both California and New York: The probate law in all three states refuses to defer to, or even reference, controlling federal law on transfer of intellectual property interests. Instead, it is mired in seventeenth-century estates in land, with grudging acquiescence that women can now own property and that sometimes (but only sometimes) children are actually adopted.

  • Meanwhile, across The Pond, Occupy Bibliothéque Nationale may be a more realistic objective now that there's a formal challenge in front of the European courts. Even if this program is rejected, though, don't expect the cultural imperialists in Paris to stop; they'll try to find another loophole/rationale — for the same reason that the US requires "deposit copies" to add (for free!) to the collection at the Library of Congress.
  • At the opposite end of antiintellectual, Ursula Le Guin ponders the meaning of Harper Lee's "other book" — the recently-published one — and accepts it as worthwhile. I've not read the recent book yet, but I had already anticipated something of this nature for a specific reason: Most people who are reacting to Go Set a Watchman haven't read To Kill a Mockingbird, or at least not since high school; they react, instead, to the mythology established around (not by) the film based upon the book, which for all its merits fails utterly at making clear that it is a story through a child's eyes in a child's simplistic, mythological, black-and-white (literally)/dualistic perspective... which is part of the point of the book. Comparison between "myth" and "novel" seldom works well; but that's the highly intellectual analysis.

25 July 2015

Secret Ingredients

An utterly disjointed (and mostly disgusting) selection of link sausages on the platter for the week...

  • Recently driving in North Portland — and by "recently" I mean "since 01 July," when Certain Substances became legal in Oregon — I saw a grocery store sign advertising a special on "Stoned Fruits." At least it was truth in advertising...
  • And it was a crappy drive getting to Portland, after getting caught (fortunately, it was just a short delay because I got by before HazMat came) when the interstate was closed for an overturned truck. Its cargo: PortaPotties.
  • Kris Rusch offers some interesting thoughts on the foolishness of publisher branding that expose a further industry blind spot. There's a fundamental problem with the entertainment industry's approaches to branding — not just publishing, but through every segment: Nobody at the corporate (or at least at the conglomerate) level is asking the fundamental question of what can be joined together to form a discernable brand. With extraordinarily rare (and self-limiting) exceptions, it's simply not something that can be done at the corporate level for corporate identities. Branding in the arts really does not extend beyond the artist/author/creator. Consider these examples:

    • Name the musicians in the "stable" of The Artist Formerly Known as the Artist Formerly Known as Prince... and believe me, there was a concerted effort to jointly identify them.
    • It's not just popular music. It's pretty easy to associate the Berlin Phil (particularly under Karajan) with Deutsche Gramophon. Without researching, can you identify the labels associated with Concertgebouw Amsterdam, the London Symphony Orchestra, the (US) National Symphony Orchestra, or even the Boston Pops?
    • Without searching, name the publishers of Scott Turow, Stephen King, John Grisham, James Michener, and Thomas Harris. Yes, it's a trick question on multiple levels.
    • Even film is not exempt from this problem. With the exception of coownership of the source material by part of the same conglomerate, it's quite unusual to be able to name the actual production company for any film, or even the distributor. Name the production company and studio for Star Trek, for Twilight, for To Kill a Mockingbird, and for Psycho. And yes, most of those are trick questions, too.

    Instead, MBA thinking makes management at distribution-of-the-arts conglomerates believe that the conglomerate is a valid brand identification for fundamentally dissimilar works. The obvious counterexample — Harlequin — has worked only because its various works are far from dissimilar... and even then fell apart when Harlequin tried to expand beyond the narrowest conception of small-r romance. And the less said about "live" arts, especially theatre, the better: With the single exception of the Royal Shakespeare Company (or, perhaps, the Ashland Shakespeare Festival), which relies upon an overarching brand name to its identity, it's almost impossible to name a "brand" relating to the distribution point.

    What Ms Rusch is describing for her own company, and her own works, is different: Her efforts are designed to enhance an existing identification of the origin, nature, and quality of goods... not to establish one out of thin air.

  • RIP E.L. Doctorow.

19 July 2015

The Beat of a Different Doldrummer

Two weeks of unexpected travel plus a sore back plus July is not a recipe for lots of blawgging...

  • Kris Rusch penned a balanced excoriation of the "Authors United" call for an antitrust investigation of Amazon that is both correct as far as it goes and goes the wrong direction — for much the same reason.

    The key thing to remember about "Authors United" is that it is composed of "bestselling authors," and mostly of trade fiction writers. Neither represents a majority — and perhaps not even a significant element — of authors, of book-length print publishing, of author compensation from sales of books, or of anything else; it's akin to a call for inquiry into NFL ticket pricing by a group of long-term luxury-box ticketholders (especially when it turns out that most of them don't buy their own tickets, but rely upon others to buy them for them... such as the almost-inevitably bestselling authors of film novelizations, and the authors whose sales were mediocre until some media adaptation raised their profiles). The factual disclosures and analysis that these "bestselling authors" expect/hope will result from a government-led antitrust inquiry into Amazon's practices will, in all probability, be meaningless to the unwashed masses in the bleacher seats at Wrigley Field — or, more to the point, attendees at college football games.

    There does need to be significantly more information made available on pricing, sales, and everything else in publishing. Publishing's culture of secrecy harms everyone whom the industry is supposed to benefit, and benefits only financial investors who might as well be investing in a widget factory in Pocatello, but for the rent they're refusing to allow for in their calculations of what they're "due" as a "fair return on investment". But that information should not be limited to what might seemingly be relevant to a few privileged vendors. I agree with a call for factual inquiry into Amazon's sales practices... and that of the rest of the publishing industries and the distribution arms of the publishing industries. Into the facts, mind you: Antitrust analysis will lead precisely nowhere, due to ideological distortion of "antitrust" and "unfair competition" over the last four decades and to the inescapable fact that there is no single publishing industry to which all of this applies. That inquiry cannot be limited to financial terms of a single endpoint if it is to be meaningful at all; the rapid convergence on "25% of net is the appropriate royalty for e-books," for example, needs at least equal scrutiny, as do nonfinancial anticompetitive terms demanded by publishers.

  • Senator McCain may have been a naval aviator, and a graduate of the US Naval Academy — both of which severely limit his strategic understanding and thinking, and his ability to comprehend and allow for fundamental changes in circumstances. He did, however, serve. Neither The Donald nor the thing on his head, however, did so — nor did the vast majority of other aspirants to the Presidency.

09 July 2015

Near the Molehills of Madness

Just a couple of miscellaneous notes in the midst of insanity (like you'd be able to tell, right?)...

  • A descendant of Jefferson Davis helped convince South Carolina's legislature to take a symbol of hatred and treason off the state Capitol grounds. The most unintentionally amusing (but also ironically accurate) element of the article may well be the reporter's bio slug:

    Michael E. Miller is a foreign affairs reporter for The Washington Post. He writes for the Morning Mix news blog.

    Sending a foreign affairs reporter to South Carolina to report on this issue may prove to have been a bit more prescient than anyone should feel comfortable with.

  • I'm shocked — shocked, I say — to hear that Exxon knew of climate change issues in the early 1980s and financed denialists thereafter. I do have one quibble with the article, though: It wasn't just a few isolated scientists who knew about climate change in 1981. In the 1970s, one high-school debate topic (on energy policy) resulted in high school students debating possibilities of climate change about every other round. The misuse of short quotations as soundbites is behind my longstanding aversion to, well, soundbites... as evidence of intellectual dishonesty and failure to understand.

    Perhaps the less said about the comparison of energy companies to tobacco companies, the better. At least when one lights up some oil one gets some useful energy out of it.

  • In one of the most remarkably dunderheaded pieces that has appeared in a remarkably dunderheaded publication in some time, a reporter claims that e-readers that report actual reading habits back to the vendors are privacy protection. If you don't want fellow subway riders to know what you're reading, make a book cover out of a paper grocery bag... like we used to do in middle school in the 1970s. Or, if you want to be a little more flamboyant, use leftover wrapping paper from that "adult entertainment emporium." But don't revel in your newfound privacy: There's a pretty good chance that someone else on that subway car works for a company that relies on personal data on your reading habits snatched from your Kindle or Nook or iPad.
  • At least some commentators are starting to admit that — just as for printed books — library e-books won't significantly cut into sales of e-books. Leaving aside that libraries are actually the single biggest (and cheapest) targeted display for books possible, the frustrations caused to readers by the way that publishers are treating libraries concerning e-books will eliminate any problem with sales rather rapidly (and ponder the preceding sausage...).
  • Loathe as I am to cite to anything from PW as factual, the list of the largest publishers in the world last year bears consideration for three points.
    • As a rather considered smack at those who think popular fiction represents "the publishing industry," seven of the top ten on the list are nonfiction-dominant. Seven of the top ten English-language-based publishers on the list don't even have a trade fiction imprint... and one of the exceptions is Scholastic, which doesn't do fiction marketed to those old enough to vote.
    • The body of the piece admits blatantly that (a) it is strongly affected by currency fluctuations and (b) continuing merger activity will be by far the most significant cause of any changes in the near future.
    • Comparison is difficult because accounts are not on the same calendars... or same basis. Which, one might add, also presumes the accuracy of material used to create post hoc rationalizations for royalty statements.

    Yet again, the story is between the lines. Which, when one thinks about it at all, is rather shameful for a publication that purports to cover fact-based issues relating to the publishing industry.

  • It's not quite Rosebud.

30 June 2015

Applesauce

Apple has lost its appeal of the antitrust judgment against it in the Wormyfruit e-book pricing lawsuit. The money quote (literally):

More fundamentally, the dissent’s theory — that the presence of a strong competitor justifies a horizontal price-fixing conspiracy — endorses a concept of marketplace vigilantism that is wholly foreign to the antitrust laws. By organizing a price-fixing conspiracy, Apple found an easy path to opening its iBookstore, but it did so by ensuring that market-wide ebook prices would rise to a level that it, and the Publisher Defendants, had jointly agreed upon. Plainly, competition is not served by permitting a market entrant to eliminate price competition as a condition of entry, and it is cold comfort to consumers that they gained a new ebook retailer at the expense of passing control over all ebook prices to a cartel of book publishers — publishers who, with Apple’s help, collectively agreed on a new pricing model precisely to raise the price of ebooks and thus protect their profit margins and their very existence in the marketplace in the face of the admittedly strong headwinds created by the new technology.

US v. Apple, No. [20]13–3741 (PDF) (2d Cir. 30 Jun 2015), slip op. at 9–10 (emphasis in original). There's a lot more to plow through — the opinion, concurrence, and dissent add up to over 150 pages — but the bottom line is that the liability and injunctive relief were affirmed in whole (indeed, the concurring opinion is even more dismissive of Apple's "defenses").

I feel vindicated on two grounds. Not only is this the rationale for antitrust lawsuits in the first place, but the court rested its judgment on facts found by the judge after a trial — and that's almost impossible to overturn. I thoroughly expect Apple to call for en banc consideration (especially since there was a dissent), but I do not expect a different result en banc... or on any appeal to the Supreme Court.

When the facts are against you, argue the law. When the law and the facts are against you, make applesauce... of a variety hopefully tastier than that decried by Justice Scalia last week.

28 June 2015

Short Memories

Chief Justice Roberts lamented:

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

Obergefell v. Hodges, No. [20]14–556, slip op. at 42 (log.) (U.S. 26 Jun 2015) (Roberts, C.J., dissenting). No, it doesn't; neither does it leave any doubt about the Court's duty.

With all due respect, Mr Chief Justice, I think you're fundamentally wrong here. Under this reasoning, the Court in Loving — a case you cite with approval, id. at 45 (log.) — had no authority to force the state of Virginia to drop its "definition" of marriage as being between individuals of the same "race." Under this reasoning, the Court in Griffin was not empowered to reject the quasilegislative actions of a local school board in closing all public schools rather than admitting persons of all races to its schools without segregation.

The District Court held that "the public schools of Prince Edward County may not be closed to avoid the effect of the law of the land as interpreted by the Supreme Court, while the Commonwealth of Virginia permits other public schools to remain open at the expense of the taxpayers." At the same time the court gave notice that it would later consider an order to accomplish this purpose if the public schools were not reopened by September 7, 1962. That day has long passed, and the schools are still closed. On remand, therefore, the court may find it necessary to consider further such an order. An order of this kind is within the court's power if required to assure these petitioners that their constitutional rights will no longer be denied them. The time for mere "deliberate speed" has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia.

Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 233–34 (1964) (citations omitted).

Indeed, this is the entire point of enshrining rights in a separate Constitution that is not subject to endless legislative tampering.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

Marbury v. Madison, 5 U.S. 137, 177–78 (1803).

The true difficulty here is that the Chief Justice does not acknowledge that an accepted fundamental right — marriage — may not be diminished through a definitional artifice by a portion of the government that is not charged with defining fundamental rights. This is functionally the same argument that shored up "separate but equal" for so long, to this nation's shame and disadvantage and (hopefully) regret. That the Virginia antimiscegenation law did not engage in the formal artifice of "defining" marriage as "between a man and a woman of the same race" made its function no less "definitional" as to who enjoyed a fundamental right.

Just as the time for deliberate speed has passed, so has the time for deferring to legislative (and quasilegislative) definitions whose effect — whose very intent — is to deny discernable segments of the citizenry fundamental rights accorded to the citizenry at large. That may make some policies difficult. It may create tension with other rights, such as a purported "free exercise" right to disregard "immoral" or "ahistorical" conduct (which leads to an obvious question regarding the right of Jewish or Muslim members of the Senate to object to the presence of pork-infused bean soup on the menu of the Senate cafeteria, as is presently required by law... especially when that law does not requiring koshering or other ritual cleansing of the bowls used to serve that soup). It does not, however, allow the courts to evade their duty in declaring that legislative and quasilegislative acts (or omissions) violate fundamental rights.

Only two of the three branches of government are elected in the federal system. Indeed, that unelected branch serves on good behavior once appointed. These are the biggest nonexplicit hints possible that the third branch is not supposed to be bound — not even swayed — by popular opinion, let alone legislative intransigence. This is what the concept of "checks and balances" described throughout the Federalist Papers is all about: That certain types of powers overlap when put into policy, and that different methods of reasoning apply to different kinds of powers. The power to declare a right is not legislative in nature; indeed, it is not electoral in nature, either.