Creeping authoritarianism

[Sanford Levinson]

Eugene writes:



>         Hmm -- and how exactly is this different from, say, Roe v. Wade,
> or the school prayer decisions, or Mapp et al., or Baker v. Carr?  All
> involved the Court asserting that its view of the Constitution is the
> true one, notwithstanding the views of other actors, who presumably
> thought that the statutes they were enacting were consistent with the
> Constitution's meaning.  (Or is the distinction that Morrison and Garrett
> involved acts of Congress, and the others involved acts of the states?)

I think the best example is Casey.  I trust that even supporters of the
result there (i.e., the reaffirmation of Roe) would agree that the tone of
the Souter-Kennedy-O'Connor opinion was authoritarian to the core.

One other point on "authoritarianism":  I think that stare decisis is, as a
technical matter, "authoritarian" inasmuch as it dictates that people
accept the validity of decisions that are quite rightly thought to be
indefensible.  This, of course, was Bentham's critique of precedent-based
decisionmaking, and he was clearly correct.  There are, of course, also
good reasons to follow precedent (at least on occasion), but this is just
to say that there are times when "authoritarianism" is actually the best
approach, all things considered.

My old professor, Carl J. Friedrich, used to define "an authority" as a
person whose views would be accepted without further argument.  This is,
obviously, very different from "agreeing" with the authority, because if
one says that one "agrees," it suggests that one is capable of assessing
"the authority's" argument, whereas the point is to say that "I am willing
to accept whatever 'the authority' says is the case about the matter in
question."  That is, after all, the basis on which almost all of us accept
"doctor's orders."

sandy

sandy

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20021022/d301ef6d/attachment.htm