the last shall be first

[Volokh, Eugene]

        I agree with Jim that who will or will not "have a special place in
Dante's inferno" is not exactly a topic on which we con law profs can shed
much light.  It seems best if we stay away from questions of divine justice
-- because we are not experts on it, and because such discussions tend to
distract us from matters on which we are expert -- and focus on more mundane
justice.

        Eugene



> -----Original Message-----
> From: Jim Ryan [SMTP:jryan at LAW5.LAW.VIRGINIA.EDU]
> Sent: Monday, March 12, 2001 11:18 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: the last shall be first
>
> I really appreciate Eugene's efforts to defend Rick Duncan, as well as his
> repeated suggestion that we attempt to engage Rick's arguments rather than
> simply make fun of them.  I'm wondering, Euguene, if you can offer some
> advice as to how to respond to Rick's suggestion that Harry Blackmun (and
> only Harry?) may be burning in hell for his decision in Roe?  I find that
> to
> be an intruiging, very relevant, and very substantive idea; I just can't
> seem to find the right way to phrase my response.
>
> At 07:57 AM 3/11/01 -0800, you wrote:
> >I want to thank Eugene for his thoughtful response to
> >Paul Finkelman's  attack on people, like me, who don't
> >share Finkelman's beliefs. Bill Buckley once said that
> >he is amused by liberals, like Finkelman, who always
> >assert that they value differences of opinion but who
> >in practice seem shocked to learn that not everyone
> >shares their liberal ideology. Finkelman is
> >self-refuting, and no response is needed, but I
> >appreciate Eugene's efforts nonetheless.
> >
> >
> >The reason I think Hardwick is a great opinion and Roe
> >is an abomination is the same. Justice White said it
> >best in Hardwick when he recognized that "The Court is
> >most vulnerable and comes nearest to illegitimacy when
> >it deals with judge-made constitutional law having
> >little or no cognizable roots in the language or
> >design of the Constitution." Hardwick is correct and
> >Roe is wrong because the Constitution has nothing to
> >say about either sodomy or abortion. The Court's
> >Substantive Sexual Due Process jurisprudence, no less
> >and perhaps more than it's infamous Substantive
> >Economic Due Process jurisprudence, is illegitimate
> >and constitutes *oppression* by subverting one of the
> >most basic and fundamnetal constitutional rights, the
> >right of a free people to govern themselves
> >democratically.
> >
> >Justice White's opinion in Hardwick is a great one
> >because he recognized this risk of illegitimacy and
> >insisted on faithfully adhering to a test--the test of
> >history and tradition for determining fundamental
> >rights--that is designed to reassure both the Court
> >"and the public that announcing rights not readily
> >identifiable in the Constitution's text involves much
> >more than the imposition of the Justice's own choice
> >of values" on a self-governing people
> >
> >He then gave an honest answer to the question whether
> >our society has traditionally revered the right to
> >engage in homosexual conduct. The opinion in Hardwick
> >does not oppress anyone--it merely recognizes that the
> >sodomy issue should be resolved in the political
> >process (as a legislator, by the way, I would not
> >support laws making consensual sexual conduct a crime,
> >because I believe such laws are not easy to uniformly
> >and fairly enforce).
> >
> >Roe is not only tyrannical, it constitutes the
> >greatest type of *oppression* because it enshrines the
> >right to kill an innocent human being as a fundamental
> >constitutional right. Roe has shamed and tainted the
> >Constitution and America. If there is divine justice--
> >and I believe there is--there is a special place in
> >Dante's inferno for Harry Blackmun, whose name has
> >become synonymous with the killing of innocent
> >children. Perhaps he will spend eternity watching
> >images, over and over, of the violent deaths of the
> >innocent children his opinion condemned.
> >
> >There is no question that we are in the middle of a
> >culture war in America, and we disagree over the most
> >basic things, about even what things are good and what
> >things are evil. So our "best" and "worst" opinion
> >lists are likely to differ in fundamental respects.
> >This is diversity and we should celebrate it, not
> >silence it. Eugene was right the other day--we need to
> >take affirmative action to increase the number of
> >Republican women and religious conservatives on law
> >school faculties, particularly on the faculties of
> >elite law schools.
> >
> >In the long run, I am sure that history will vindicate
> >White and will condemn Blackmun. In the meantime, Paul
> >Finkelman needs to calm down and understand that not
> >everyone is required to think as he thinks and to
> >believe what he believes.
> >
> >Rick Duncan
> >Welpton Professor of Law
> >University of Nebraska
        . . .
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