hendersl at IX.NETCOM.COM
Tue Oct 22 10:15:03 PDT 2002
MessageI must respectfully disagree with completely terminating the discussion. I do think authoritarianism is a proper subject for conlawprof but then I wrote an article expressing concerns about an authoritarian turn on the Court (which I think *at most* prompted a massive yawn at the time it appeared). But *Bush v. Gore* , *Garrett*, *US v. Morrison*, the Military Order of Nov. 13, 2001 and subsequent military regs, the treatment of detainees and immigrants, all support the argument that we are indeed experiencing authoritarianism under the guise of the "rule of law"
hendersl at ix.netcom.com
Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland Pkwy
Las Vegas, NV 89154
----- Original Message -----
From: Volokh, Eugene
To: CONLAWPROF at listserv.ucla.edu
Sent: Tuesday, October 22, 2002 7:45 AM
Subject: Re: Creeping authoritarianism
Well, I disagree with Jack extremely strongly about this, and think that parts of the following are shockingly unfair to the President and to the Republican Party; but I have no desire to discuss this on-list.
From: Jack Balkin [mailto:jack.balkin at YALE.EDU]
Sent: Tuesday, October 22, 2002 1:25 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Creeping authoritarianism
Eugene, I put this section at the end of my discussion, separated by asterisks, because it raises a separate issue. One question is whether John's proposal is a good thing in general, no matter which party is in power and no matter who the president is. It isn't a good idea, I think, because it destroys the system of checks and balances. The second issue, which the section you mentioned concerns, is about my political/constitutional judgment that there's something very troubling about the world we are living in today. I believe that there is special reason to be concerned about giving *this* President more power because he is a dangerous man, in fact, as I've said in a recent op-ed, I believe that he is the most dangerous person on Earth.
You may well disagree with me, but I must state my fears openly. The Republican Party's right wing has gotten increasingly strident over the last decade, and increasingly liable to make any argument, no matter how absurd, to secure its power. I regard the 2000 election as simply a disgrace to our democracy. An election was stolen, stolen, in the greatest democracy in the world. The person who took power as President has shown strongly authoritarian tendencies, and he is playing a very dangerous game in foreign policy. His legitimacy as President stems not from the American electorate but from the work of Osama bin Laden, and he is milking that source of legitimacy for all it is worth. The excessive secrecy of this Administration, its distaste for accountability, the secret detentions, the rounding up of immigrants, the manipulation of fear, the Orwellian doublespeak spewing from Ari Fleischer's office, the bait and switch from bin Laden to Hussein to distract attention from the Administration's domestic and foreign policy failures, the attempt to govern the nation through war-- all these things disturb me and worry me. They don't speak well for the health of our democracy.
Please don't get me wrong when I use the word "authoritarian." George W. Bush has not transformed the United States into the Cold War Soviet Union. But he and the right wing of his party have begun to undermine the foundations of our constitutional system. This is cause for worry, and we should speak up about it. And we should not talk in general terms about Presidents in general. We should talk about this President and what he is doing to our country. And if we speak up about it, and encourage others to do so as well, there is a very good chance that the constitutional system will not be undermined, and that these authoritarian tendencies can be checked before they get out of hand. That is the crucial difference between our situation and that of a truly authoritarian state.
I take your point that in 1995 conservatives might well have thought Clinton dangerous. But there is a real difference in my mind. I never believed that Clinton had authoritarian tendencies. Far from it. He was much too desperate to be loved and so he repeatedly sucked up to his opponents. I thought that he was unscrupulous, dishonest, and sleazy. But I didn't believe that he would subvert or undermine our constitutional system, nor did I believe that he would unilaterally plunge us into a very dangerous and costly war regardless of what the country wanted. Perhaps you disagree with me on both of those points. Fine. But the question of whether the actual people who hold office today are subverting our constitutional system is a completely appropriate topic for the Conlawprof list. If it is not, we are just kidding ourselves about what we are doing as professors of Constitutional law.
At 12:00 AM 10/22/02 -0700, you wrote:
Date: Mon, 21 Oct 2002 09:27:24 -0700
From: "Volokh, Eugene" <VOLOKH at mail.law.ucla.edu>
Subject: "Just gives me the creeps"
Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C2791E.BD2BA890"
Jack makes some interesting points about constitutional law proper, but I wonder how we evaluate assertions such as "Frankly, the man [President Bush] just gives me the creeps. I don't trust him one bit, and despite his often bland rhetoric of inclusion and consultation, I think that he likes bullying and overpowering people and cutting his opponents off at the knees. He is a very dangerous man, and we should not be giving him any more power than he has already seized." Obviously such arguments are made -- loudly or quietly -- in political debate all the time; but I wonder to what extent they can work as arguments about what constitutional law should be.
Put it another way: Say that in 1995 a similar argument were made on this list (which of course didn't exist at the time) about President Clinton, in reaction to a proposal that would have given the President (both Clinton and future presidents) more power at the expense of the Congress. How would we have / should we have reacted to it? Does it matter whether the argument is made as an example -- "We should not be giving Presidents any more power than they already have, because some of them will be people whom we might not trust with the power, see, e.g., the President we have today" -- as opposed to a specific point focused on this specific President -- "we should not be giving *him* any more power than he has already seized, because *he* is a very dangerous man"?
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