Creeping authoritarianism

Lynne hendersl at IX.NETCOM.COM
Tue Oct 22 11:34:26 PDT 2002

*Morrison* involved a statute establishing a civil rights cause of action
for women who were victims of gender-based violence;  *Garrett* involved the
ADA, an  anti-discrimination/civil rights law.  Many  cases decided by this
current Court  declaring sovereign immunity and cutting back on
congressional power under the commerce clause and/or section five have
involved challenges to laws seeking to expand opportunities and rights for
those traditionally, historically, or currently subject  to prejudice and
bias.  I don't have the cite off the top of my head, but this observation
has already been made by Jed Rubenfeld in a recent Yale LJ piece.  While one
can quarrel individually with each statute involved (I for one am in print
to the effect that the civil rights cause of action under VAWA would not
have a lot of impact on lessening violence agianst women), it is the overall
attitude to those who are different" or disadvantaged that concerns me.

What I have termed "substantive authoritarianism" clusters around prejudice
against those who are different, patriarchy, and racism, a punitive attitude
to deviance (see *Bowers*), and an insistence on obedience (*see* Larry
Kramer's Harvard L Rev. piece on the COurt's recent claims to being the
*exclusive* interpreter of the Constitution).  Anti-authoritarinism seeks
inclusion, rights, and at a minimum eqaul concern and respect.  Across a
number of domains, a majority the Supreme Court has been hostile to civil
rights claims procedurally and substantively,  and those cases I mentioned
are two examples.

Before anyone points it out, I recognize at one level law can be said always
to  be authoritarian because of its establishment of "rules" and expectation
that people will obey/follow those rules (see the earlier discussion of
whether lower courts could engage in what Michael Stokes Paulsen has termed
"underruling" Supreme Court precedent)  Stronger forms of authoritarianism
include again substantive authoritarianism and reinforcement of obedience,
prejudice or disadvantage, and punitive beliefs.  The antidote appears to
be empathy and/or a strong commitment to human rights.


Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland Pkwy
Box 451003
Las Vegas, NV  89154
----- Original Message -----
From: "Earl Maltz" <emaltz at CRAB.RUTGERS.EDU>
Sent: Saturday, February 22, 2003 10:38 AM
Subject: Re: Creeping authoritarianism

> Ok, I'll bite.  What do Garrett and Morrison have to do with
> At 09:15 AM 10/22/2002 -0700, you wrote:
> >I 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"
> >          Sincerely
> >                     Lynne
> ><mailto:hendersl at>hendersl at
> >Prof. Lynne Henderson
> >Boyd School of Law--UNLV
> >4505 Maryland Pkwy
> >Box 451003
> >Las Vegas, NV  89154
> >702-895-2625
> >----- Original Message -----
> >From: <mailto:VOLOKH at>Volokh, Eugene
> >To: <mailto:CONLAWPROF at>CONLAWPROF at
> >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
> > the Republican Party; but I have no desire to discuss this on-list.
> >
> >     Eugene
> >
> >-----Original Message-----
> >From: Jack Balkin [mailto:jack.balkin at YALE.EDU]
> >Sent: Tuesday, October 22, 2002 1:25 AM
> >To: <mailto:CONLAWPROF at>CONLAWPROF at
> >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
> >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
> > 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
> > accountability, the secret detentions, the rounding up of immigrants,
> > 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
> > 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
> > 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.
> > never believed that Clinton had authoritarian tendencies. Far from
> > it.  He was much too desperate to be loved and so he repeatedly sucked
> > 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
> > 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.
> >
> >Jack Balkin
> >
> >
> >
> >At 12:00 AM 10/22/02 -0700, you wrote:
> >>Date:    Mon, 21 Oct 2002 09:27:24 -0700
> >>From:    "Volokh, Eugene" <VOLOKH at>
> >>Subject: "Just gives me the creeps"
> >>MIME-Version: 1.0
> >>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
> >> 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."
> >> 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
> >> 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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