- Email: [email protected]
Justice vs. law: Courts and politics in American Society
341
Reviews
Internet services), connecting to the Internet (including the advantages and disadvantages of the various e-mail gateways), and appendixes (Internet resources, newsgroup list, and fee-based access services). The manual provides considerable detail so that the reader has enough context and knowledge of exceptions to make initial journeys into cyberspace with confidence. The Internet resources section, a marvelous compilation by subject, includes WAIS sources, FAQ files and FTP sites, and mailing lists. The book also has an index and a glossary. The diskette includes MacTCP, Eudora (a mail reader), InterSLIP, Fetch 2.1.1, TurboGopher, and StuffIt Expander. This manual is highly recommended. The Mac Internet Tour Guide lacks the detail and lengthy lists of resources found in the other title reviewed, but it does have a straight-forward approach and the how-to-do portions of the text are presented in numbered steps supported with generous reproductions of the applications being explained. Four types of icons identify sidebars throughout the book; these include people profiles, which give snapshots of how people use the Internet. Software reviews give brief overviews of some of the best public domain, freeware and shareware programs. Hot spots and cool resources provide short descriptions of popular and offbeat Internet resources. “Text excerpts are brief passages of network news exchanges, electronic mailing list information, amusing conversations, general tips and tricks and other information morsels that may not fit within the context of a chapter, but are interesting nonetheless” (p. 3). Other features include an index, a glossary, and a short but useful bibliography of books and articles that discuss legal, economic, social, and political issues related to networked communication. The diskette includes Fetch, Eudora, and StuffIt Expander. Purchasers of the book are entitled to two free updates, which will include reviews of software, new information sources, tips for using the Net, and the latest news about the Internet. This book is also recommended. On a technical level, both authors do a fine job in assisting users in accessing the Internet. These entrepreneurs are sanguine about their predictions of the Internet’s future. They envision a computer network driven in positive directions by the private sector. “As soon as enough small businesses and individuals-the driving force of our economy-decide that connection to the Internet is an important asset,” Fraase asserts, “privatization of the Internet will occur very quickly” (p. 11). The Clinton administration, which apparently agrees with this optimistic economic outlook, has begun to eliminate government subsidies for connections to the Internet, shifting costs to the users and producers. In spite of this cry for self-sufficiency, the administration’s announcements usually include some kind assurance for universal access to the expanding information infrastructure. Major corporations, which envision the Internet as a superhighway to deliver entertainment and information for profit, will do well in this unsubsidized environment. But, the question remains, will the public, despite President Clinton’s promises, and Engst and Fraase unalloyed faith in the free-market system, enjoy the full information potential of a deregulated Internet?
Justice vs. Law: Courts and Politics in American Society. By Gary L. McDowell and Eugene W. Hickok. New York, NY: Macmillan, 1993. 253~~. $24.95 (hardcover). ISBN O-02-920529-8. Reviewed by Steve McKinzie, College, Carlisle, Pennsylvania,
Serials Librarian, 17013.
Body Lee Spahr
Library,
Dickinson
There is great amount of civic faith in the notion that America is a nation of laws and not of people-that the rule of law secures our freedoms and protects our rights. This concept is nearly as American as apple pie, as sacrosanct as motherhood, and as secure as the Government Printing Office’s depository library program.
342
GOVERNMENT
INFORMATION
QUARTERLY
Vol. 11 /No. 311994
Yet, there is a countervailing perspective that characterizes this country’s historic interplay of law and liberty as a foundation beset by serious erosion-that we are becoming a nation governed by judicial fiat (well-meaning and enlightened fiat, to be sure, but fiat nonetheless). Simply put, these critics charge that pernicious judicial activism among Supreme Court justices has slowly altered the meaning and balance of the Constitution. Now more than ever, as in the words of Charles Evans Hughes, we are a nation in which “The Constitution is what the judges say it is.” Those involved in the discussion and study of government information policy, who are apt to dismiss these claims as mere conservative rhetoric, would do well to read this book. The authors served brief tenures within the Reagan Justice Department. Their personal experience with the High Court and their painstaking examination of the court records make for a compelling legal and policy analysis (as is their case against the new judicial activism). Rarely have the polemics against the expanding power of the courts been more forcefully argued or more cogently analyzed. The book offers a framework, a perspective, and an understanding of how judicial information is collected. What is more, the authors render the often conflicting and seemingly mystical decisions of the Supreme Court understandable, even as they take issue with a great many of the Court’s rulings. Few Supreme Court justices could resist the temptation to rule according to what may appear to be morally right thing rather than that which has actually been laid down by law. Hickok and McDowell point out that in Casey vs. Planned Parenthood, three of the supposedly conservative justices sided with the majority. They embraced Justice Brennan’s notion of an “evolving constitution” that changes according to the altering morality of an increasingly enlightened society. Even conservative justices felt constrained to rule according to what was morally right instead of according to what was constitutionally correct. It is this tension surrounding due process, Hickok and McDowell maintain, that characterizes a great deal of American judicial history. In chapters analyzing the history of the Senate’s treatment of the confirmation hearings and the ways in which theories of due process have waxed and waned with time and circumstance, Hickok and McDowell demonstrate how ideological conflicts surrounding activism and restraint and between strict and loose constructionists of the Constitution have dominated the courts. They also reveal that the increasing power of the court has unwittingly fueled the increasing politicization of the confirmation process of justices and how such growing judicial power has inadvertently weakened our reliance on popularly elected legislatures. Despite their clear ideological predilections, the authors issue no call for reform. They are not championing a revisiting of the Bork nomination or a return to the good-old days of the Reagan years. They do not even tell us how their theories may apply to other areas of judicial controversy. What they offer is instead an intellectual framework, a way of understanding the courts and our own society. Traditional social conservatives who insist on a reliance on natural law and progressive liberals who favor social justice will alike find the book upsetting. Few are likely to agree with all that the authors have to say. But for richness of narrative and incisive analysis, the book has few equals and will, no doubt, win its share of admirers even among those who disagree. For those who labor in the fields of government information policy, Hickok and McDowell’s work has an additional value. It serves as a kind of analogy to some long-standing government information distribution and access issues--for example, the debates between judicial conservatives and liberals- -so Justice versus Law parallels those ongoing quarrels between information libertarians (those who would argue for a free-market of information at market prices) and the right-of-access proponents (those who favor unfettered and feeless government data). Hickok and McDowell’s arguments for judicial restraint may suggest that the proponents for right-of-access have overstated their case for ready access to government information,
Reviews
343
Government information may be valuable and important. However, it is not, and never has been, a right. Justice vs. Law may be one of the best recent books on American political culture. Hickok and McDowell have articulated what we only suspected and made clear what we barely understood. Judicial activism and a progressive view of the Constitution have an enormously attractive and highly plausible appeal; such views are also (more often than not) dangerous. They undermine the rule of law and the importance of popular government. For Hickok and McDowell, traditionalists such as Rehnquist have it right. Courts must never rule according to the ever-changing and even whimsical notions of justice. They must rule according to law.
Making Government Work: Electronic Delivery of Federal Services. By U.S. Congress. Office of Technology Assessment. Washington, D.C.: Government Printing Office, September 1993. 178~~. $11.00 (softcover). OTA-TCT-578. SuDoc #: Y3.T22/2:2 EL 2/ 12. ISBN: 0-16-0420806. GPO Stock #: 052-003-01346-l. NTIS Order #: PB94-107067. GPO Moving Forward in the Electronic Age: A Strategic Outlook. By Office of the Public Printer. Washington, D.C.: Government Printing Office, January 1993.45~~. (softcover). Reviewed by John A. Shuler, Head of Documents/Maps, Microforms Collection, and Curriculum Library, University Library, (M/C 234), Box 8198, Chicago, 11, 60680-0424. Each report draws its strength from an unalloyed faith in bureaucratic redemption through the rational application of information technology. After careful consideration, however, one wonders if they herald a new age of public philosophy and service or merely redirect the traditional forces of division, gridlock, and discord that pass for daily public management along the electronic byways of the expanding information superhighway. Making Government Work is the more expansive vision and assessment. Indeed, the report’s authors recognize the keen interest within the Executive Branch in this subject. They bind their key topics and issues to: the “reinventing government” and “service to the citizen” movements that started at the State and local levels and have spread to the Federal government. The use of information technology to improve the delivery of Federal services is a major focus of the “National Performance Review” currently being implemented by the Vice President and is a key component of the President’s “Technology Policy for Economic Growth” and related “National Information Infrastructure” initiatives. Delivering services electronically is now seen as directly linked to improving the Federal Government’s services to the citizens of America (p. 2). This prototypical OTA study rests many of its observations and arguments on the relative strengths and weaknesses of 18 different contractor reports that were written from late 1991 to early 1993. As a result, they give the report a general sense of lagging behind many technological and political developments that seem to be evolving on an almost weekly basis. The report is more successful when it analyzes these technological developments (dated as they are) and their implications for Federal information resources management and policies. Again, this demonstrates that even though the technology may grow and evolve into seemingly wondrous applications, there remain bedrock political and policy questions about how the public and private sectors must redistribute these resources.
Reviews
Internet services), connecting to the Internet (including the advantages and disadvantages of the various e-mail gateways), and appendixes (Internet resources, newsgroup list, and fee-based access services). The manual provides considerable detail so that the reader has enough context and knowledge of exceptions to make initial journeys into cyberspace with confidence. The Internet resources section, a marvelous compilation by subject, includes WAIS sources, FAQ files and FTP sites, and mailing lists. The book also has an index and a glossary. The diskette includes MacTCP, Eudora (a mail reader), InterSLIP, Fetch 2.1.1, TurboGopher, and StuffIt Expander. This manual is highly recommended. The Mac Internet Tour Guide lacks the detail and lengthy lists of resources found in the other title reviewed, but it does have a straight-forward approach and the how-to-do portions of the text are presented in numbered steps supported with generous reproductions of the applications being explained. Four types of icons identify sidebars throughout the book; these include people profiles, which give snapshots of how people use the Internet. Software reviews give brief overviews of some of the best public domain, freeware and shareware programs. Hot spots and cool resources provide short descriptions of popular and offbeat Internet resources. “Text excerpts are brief passages of network news exchanges, electronic mailing list information, amusing conversations, general tips and tricks and other information morsels that may not fit within the context of a chapter, but are interesting nonetheless” (p. 3). Other features include an index, a glossary, and a short but useful bibliography of books and articles that discuss legal, economic, social, and political issues related to networked communication. The diskette includes Fetch, Eudora, and StuffIt Expander. Purchasers of the book are entitled to two free updates, which will include reviews of software, new information sources, tips for using the Net, and the latest news about the Internet. This book is also recommended. On a technical level, both authors do a fine job in assisting users in accessing the Internet. These entrepreneurs are sanguine about their predictions of the Internet’s future. They envision a computer network driven in positive directions by the private sector. “As soon as enough small businesses and individuals-the driving force of our economy-decide that connection to the Internet is an important asset,” Fraase asserts, “privatization of the Internet will occur very quickly” (p. 11). The Clinton administration, which apparently agrees with this optimistic economic outlook, has begun to eliminate government subsidies for connections to the Internet, shifting costs to the users and producers. In spite of this cry for self-sufficiency, the administration’s announcements usually include some kind assurance for universal access to the expanding information infrastructure. Major corporations, which envision the Internet as a superhighway to deliver entertainment and information for profit, will do well in this unsubsidized environment. But, the question remains, will the public, despite President Clinton’s promises, and Engst and Fraase unalloyed faith in the free-market system, enjoy the full information potential of a deregulated Internet?
Justice vs. Law: Courts and Politics in American Society. By Gary L. McDowell and Eugene W. Hickok. New York, NY: Macmillan, 1993. 253~~. $24.95 (hardcover). ISBN O-02-920529-8. Reviewed by Steve McKinzie, College, Carlisle, Pennsylvania,
Serials Librarian, 17013.
Body Lee Spahr
Library,
Dickinson
There is great amount of civic faith in the notion that America is a nation of laws and not of people-that the rule of law secures our freedoms and protects our rights. This concept is nearly as American as apple pie, as sacrosanct as motherhood, and as secure as the Government Printing Office’s depository library program.
342
GOVERNMENT
INFORMATION
QUARTERLY
Vol. 11 /No. 311994
Yet, there is a countervailing perspective that characterizes this country’s historic interplay of law and liberty as a foundation beset by serious erosion-that we are becoming a nation governed by judicial fiat (well-meaning and enlightened fiat, to be sure, but fiat nonetheless). Simply put, these critics charge that pernicious judicial activism among Supreme Court justices has slowly altered the meaning and balance of the Constitution. Now more than ever, as in the words of Charles Evans Hughes, we are a nation in which “The Constitution is what the judges say it is.” Those involved in the discussion and study of government information policy, who are apt to dismiss these claims as mere conservative rhetoric, would do well to read this book. The authors served brief tenures within the Reagan Justice Department. Their personal experience with the High Court and their painstaking examination of the court records make for a compelling legal and policy analysis (as is their case against the new judicial activism). Rarely have the polemics against the expanding power of the courts been more forcefully argued or more cogently analyzed. The book offers a framework, a perspective, and an understanding of how judicial information is collected. What is more, the authors render the often conflicting and seemingly mystical decisions of the Supreme Court understandable, even as they take issue with a great many of the Court’s rulings. Few Supreme Court justices could resist the temptation to rule according to what may appear to be morally right thing rather than that which has actually been laid down by law. Hickok and McDowell point out that in Casey vs. Planned Parenthood, three of the supposedly conservative justices sided with the majority. They embraced Justice Brennan’s notion of an “evolving constitution” that changes according to the altering morality of an increasingly enlightened society. Even conservative justices felt constrained to rule according to what was morally right instead of according to what was constitutionally correct. It is this tension surrounding due process, Hickok and McDowell maintain, that characterizes a great deal of American judicial history. In chapters analyzing the history of the Senate’s treatment of the confirmation hearings and the ways in which theories of due process have waxed and waned with time and circumstance, Hickok and McDowell demonstrate how ideological conflicts surrounding activism and restraint and between strict and loose constructionists of the Constitution have dominated the courts. They also reveal that the increasing power of the court has unwittingly fueled the increasing politicization of the confirmation process of justices and how such growing judicial power has inadvertently weakened our reliance on popularly elected legislatures. Despite their clear ideological predilections, the authors issue no call for reform. They are not championing a revisiting of the Bork nomination or a return to the good-old days of the Reagan years. They do not even tell us how their theories may apply to other areas of judicial controversy. What they offer is instead an intellectual framework, a way of understanding the courts and our own society. Traditional social conservatives who insist on a reliance on natural law and progressive liberals who favor social justice will alike find the book upsetting. Few are likely to agree with all that the authors have to say. But for richness of narrative and incisive analysis, the book has few equals and will, no doubt, win its share of admirers even among those who disagree. For those who labor in the fields of government information policy, Hickok and McDowell’s work has an additional value. It serves as a kind of analogy to some long-standing government information distribution and access issues--for example, the debates between judicial conservatives and liberals- -so Justice versus Law parallels those ongoing quarrels between information libertarians (those who would argue for a free-market of information at market prices) and the right-of-access proponents (those who favor unfettered and feeless government data). Hickok and McDowell’s arguments for judicial restraint may suggest that the proponents for right-of-access have overstated their case for ready access to government information,
Reviews
343
Government information may be valuable and important. However, it is not, and never has been, a right. Justice vs. Law may be one of the best recent books on American political culture. Hickok and McDowell have articulated what we only suspected and made clear what we barely understood. Judicial activism and a progressive view of the Constitution have an enormously attractive and highly plausible appeal; such views are also (more often than not) dangerous. They undermine the rule of law and the importance of popular government. For Hickok and McDowell, traditionalists such as Rehnquist have it right. Courts must never rule according to the ever-changing and even whimsical notions of justice. They must rule according to law.
Making Government Work: Electronic Delivery of Federal Services. By U.S. Congress. Office of Technology Assessment. Washington, D.C.: Government Printing Office, September 1993. 178~~. $11.00 (softcover). OTA-TCT-578. SuDoc #: Y3.T22/2:2 EL 2/ 12. ISBN: 0-16-0420806. GPO Stock #: 052-003-01346-l. NTIS Order #: PB94-107067. GPO Moving Forward in the Electronic Age: A Strategic Outlook. By Office of the Public Printer. Washington, D.C.: Government Printing Office, January 1993.45~~. (softcover). Reviewed by John A. Shuler, Head of Documents/Maps, Microforms Collection, and Curriculum Library, University Library, (M/C 234), Box 8198, Chicago, 11, 60680-0424. Each report draws its strength from an unalloyed faith in bureaucratic redemption through the rational application of information technology. After careful consideration, however, one wonders if they herald a new age of public philosophy and service or merely redirect the traditional forces of division, gridlock, and discord that pass for daily public management along the electronic byways of the expanding information superhighway. Making Government Work is the more expansive vision and assessment. Indeed, the report’s authors recognize the keen interest within the Executive Branch in this subject. They bind their key topics and issues to: the “reinventing government” and “service to the citizen” movements that started at the State and local levels and have spread to the Federal government. The use of information technology to improve the delivery of Federal services is a major focus of the “National Performance Review” currently being implemented by the Vice President and is a key component of the President’s “Technology Policy for Economic Growth” and related “National Information Infrastructure” initiatives. Delivering services electronically is now seen as directly linked to improving the Federal Government’s services to the citizens of America (p. 2). This prototypical OTA study rests many of its observations and arguments on the relative strengths and weaknesses of 18 different contractor reports that were written from late 1991 to early 1993. As a result, they give the report a general sense of lagging behind many technological and political developments that seem to be evolving on an almost weekly basis. The report is more successful when it analyzes these technological developments (dated as they are) and their implications for Federal information resources management and policies. Again, this demonstrates that even though the technology may grow and evolve into seemingly wondrous applications, there remain bedrock political and policy questions about how the public and private sectors must redistribute these resources.