Fwd: : RE: Inferences of loyalty . . .

[Lynne Henderson]

>Date: Mon, 17 Sep 2001 07:56:25 -0700
>To: conlawprof at listsev.ucla.edu
>From: Lynne Henderson <hendersl at ix.netcom.com>
>Subject: Fwd: : RE: Inferences of loyalty . . .
>
>
>>>>as much as one would hope the "rule of law" notion constrains,
>>>> > I agree with Sandy.  When "the state" itself is under attack,
>>>> > constitutional niceties have fallen by the wayside.  The week
>>>> before, a student
>>>> > of mine in the Reserves had said he did not believe *Korematsu*
>>>> could ever happen
>>>> > again.  I pointed out it has never been overruled and that one couldn't
>>>> > know.  How awful that we are about to find out, perhaps.
>>>> >     If it is true that the hijackers were primarily Egyptians, some
>>>> > of whom were naturalized citizens, I have little hope for Arab
>>>> Americans' safety. At a
>>>> > minimum, if I were the government, I would  have them all under
>>>> > surveillance  now--niceties of the Wiretapping Statute, etc. aside.
>>>> (In fact, Attorney General Ashcroft has called for a broadening of the
>>>> FBI's ppowers under the wiretapping law and expanded authorization for
>>>> surveeillance, and Congress is likely to go along).  Although there
>>>> have been calls for protecting "civil liberties," the very same people
>>>> also are calling for expanding law enforcement powers --beyond taking
>>>> account of technological changes such as wiretapping requiring
>>>> identification of a specific line in a cell phone age (but as there
>>>> really cannot bne a reasonable expectation of privacy in a cell phone
>>>> call, I am unsure why this is suddenly a "problem")
>>>>         I cannot imagine the  Court saying this is unconstitutional,
>>>> even though it
>>>> > technically is. And  as I told another student, I would have no
>>>> confidence that courts
>>>> > would find  any Fourth Amendment violations during this period
>>>> (indeed, if a
>>>> > judge were so bold, she or he would undoubtedly be pilloried by the
>>>> press.
                Of course, I believe the Executive and Legislative branches
also have a duty to interpret and folow the Constitution:  One hopes for
the quality of debate prior to the Gulf war, but it is perhaps a silly
hope. Indeed, I also agree with Sandy that if Sen Hatch were to reintroduce
the flag-burning amendment, it would sail through now.
>>>> >      Sincerely
>>>> >         Lynne
>>>> >
>>>> >
>>>> > on 9/15/01 10:56 AM, Sanford Levinson at SLevinson at MAIL.LAW.UTEXAS.EDU
>>>> > wrote:
>>>> >
>>>> > > My answer is (perhaps too) simple.  War is, as Randolph Bourne
>>>> > pointed out
>>>> > > many years ago, "the health of the state," meaning, among other
>>>> things,
>>>> > > that war has not been, historically, good for civil liberties.  To
>>>> what
>>>> > > extent,then, is it realistic to believe that the courts will
>>>> > read a notably
>>>> > > complex document like the Constitution in a way that will
>>>> significantly
>>>> > > protect civil liberties against congressional and executive
>>>> > depradation?  I
>>>> > > think we should tell our students that they should not maintain a
>>>> naive
>>>> > > faith in "the Court as guardian of our constitutional
>>>> > liberties," given the
>>>> > > Court's track record (including during the Vietnam War, as
>>>> indicated by
>>>> > > O'Brien, written, you will undoubtedly recall, by Earl Warren).
>>>> > >
>>>> > > As I've noted before, Korematsu, for all of its bad press, has
>>>> > never, to my
>>>> > > knowledge, been "overruled," and it is worth discussing whether
>>>> > it doesn't
>>>> > > contain serious arguments that have to be addressed by a lawyer trying
>>>> > > either a) to predict what courts will actually do or b) to
>>>> > engage in that
>>>> > > mysterious enterprise called constitutional interpretation.  We
>>>> recently
>>>> > > discovered, reading Chief Justice Rehnquist's opinion in Morrison, for
>>>> > > example, that despicable cases like Harris and the Civil Rights Cases
>>>> > > suddenly re-emerge as authoritative constructions of the Fourteenth
>>>> > > Amendment.  And Scalia, in Smith, gives renewed life to Reynolds,
>>>> a case
>>>> > > that clearly violates the tenets of religious free exercise
>>>> embraced by
>>>> > > many of us on this list.  One just never knows when cases will
>>>> > arise from
>>>> > > the dead and be deemed to have continuing relevance.
>>>> > >
>>>> > > In light of these comments, I find myself writing a sentence
>>>> > that, before
>>>> > > Tuesday, I would have found unimaginable:  I am overwhelmed
>>>> > with admiration
>>>> > > for Rudolph Guiliani's behavior and statements as a public
>>>> > leader over the
>>>> > > past couple of days, and I have far more faith in him (and
>>>> > Senator Shumer)
>>>> > > with regard to protecting our civil liberties than I do the
>>>> > lawyers on the
>>>> > > United States Supreme Court.  Or, put it this way, if our public
>>>> leaders
>>>> > > instead start doing what the Walter Kippmanns and Earl Warrens
>>>> > did in the
>>>> > > '40's, the Court will be more than able (and willing) to offer
>>>> > > interpretations or "rationalizations" to uphold state power.
>>>> > >
>>>> > > Incidentally, I think a good test of political seriousness will
>>>> > come when a
>>>> > > political demagogue decides that this is just the right time to
>>>> bring up
>>>> > > the flag-burning amendment before the Congress.
>>>> > >
>>>> > > sandy
>>>> >