authoritarianism

[Scarberry, Mark]

I doubt Sen. Carnahan would object to being called a woman, and there is no
basis for Prof. Miller's charge that Prof. Jacob engaged in patronizing
chauvinism by noting Sen. Ashcroft's graciousness. The obvious contrast was
with Vice President Gore's conduct, which some consider to have been
ungracious. Rather obviously it is not chauvinist to suggest that Sen.
Ashcroft's gracious conduct toward Sen. Carnahan should have been a model
for Vice President Gore's conduct toward George W. Bush, who, dare I say it,
is a man.

Further, when someone you know is personally and (on your view)
unjustifiably attacked, the decent thing to do is to defend that person and
to note that the attack is inconsistent with your personal knowledge of the
person's character. Thankfully, public discourse is not limited by the
Federal Rules of Evidence.

Prof. Jacob's point (using somewhat old-fashioned language)-- that Attorney
General Ashcroft believes he is subject to the moral constraints imposed by
a God who values truth, justice and mercy  -- may well be relevant to
counter charges of improper motive. Again of course, this is as a matter of
public discourse, not as a matter of judicially cognizable evidence, nor as
a matter of job qualification. Deeply held moral convictions, religious or
not, help us to understand why people act as they do.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Gregg Miller [mailto:gmiller at TJSL.EDU]
Sent: Tuesday, October 22, 2002 10:11 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: authoritarianism


I think I have to agree with Mr. Jacob that it serves no purpose to engage
in personal attacks, I also think that it is equally inappropriate to be
acting as a "character witness" to bolster the reputation of John Ashcroft.
It seems to me this illustrates why we have FRE 404-405.  However, I am
still tempted to respond to the "bait" by noting I was unaware that being
"God-fearing" was a necessary qualification for the job of U.S. Attorney
General.

Further I am perplexed by the observation that it is important to mention
that Mr. Ashcroft "graciously turned over his Senate office to a woman who
received no votes at all."  I don't see why it was so important that it was
a woman, or that Mr. Ashcroft acted graciously.  Does this mean that if it
had been a man who had the seat, he'd not have been gracious, and would have
mounted a challenge to the MO election?  I certainly don't pretend to speak
for any woman, but in general, I suspect that such patronizing chivalry is
likely to receive a cool reception in the twenty-first century.

Gregg P. Miller




-----Original Message-----
From: Bradley P Jacob
To: CONLAWPROF at listserv.ucla.edu
Sent: 10/22/02 1:37 PM
Subject: Re: authoritarianism

I had intended to stay out of this, for a couple of reasons.  First,
most of you need to know nothing more than the institution at which I
teach to write me off as a non-credible, right-wing radical,
fundamentalist kook, and perhaps you're correct.  I don't think I'm a
kook (or a right-wing radical or a fundamentalist, for that matter), but
it's kind of hard to be objective about oneself.  Second, it would be
very tempting for me to respond with similar attacks against the damage
to "constitutional values" caused by, e.g., Bill Clinton or Tom Daschle.
However, as Eugene suggests, I see nothing to be gained by taking the
list down these paths.  Third, if a respected scholar like our moderator
hasn't persuaded anyone, you're certainly not going to listen to a
relatively new law teacher like me.

I will say only this:  I don't know the President, but I know John
Ashcroft, and I believe him to be as decent, honorable, kind, and
God-fearing a public servant as I will ever meet.  This is a man who
chose not to fight the absurdity of losing an election to a dead man,
and instead graciously turned over his Senate office to a woman who
received no votes at all.  My point is not that Ashcroft would or would
not have eventually prevailed in a legal challenge to the 2000 election;
rather, my point is that he put the best interests of Missouri and the
nation above his own ambition and allowed the issue to be settled
without further rancor.  He has had a distinguished career in public
service at both the state and federal level, and is viewed as a role
model by many of us.

So I do find the name-calling of Mr. Ashcroft to be offensive.  If you
disagree with any of his actions or decisions, fine.  Debate their
merits.  But the ad hominem attacks and analogies to authoritarian,
oppressive regimes are not helpful.  If John Ashcroft is a "dangerous
extremist," so are the huge numbers of ordinary Americans whose views
are similar to his and who sympathize with the difficulty of preserving
the balance of individual rights and rule of law in time of war.  Those
mainstream, ordinary people would find today's discussion to be a
tremendous affirmation of their belief that secular academia is
dominated by an extremist liberal worldview that is completely out of
touch with the ways that most Americans view their nation, their
government and its leaders.

I really enjoy learning from all of you when you stick to scholarly
discussion of legal issues, but today's posts have made me think that I
was too optimistic in believing that people from all over the
ideological spectrum can really engage in friendly, constructive
discussion of law without personal attacks on the other side.

Brad
_______________________________

Professor Bradley P. Jacob
Regent University School of Law
1000 Regent University Drive
Virginia Beach, VA 23464-9800
Voice 757-226-4523
Fax 757-226-4571
Email bradjac at regent.edu
_______________________________

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Volokh, Eugene
Sent: Tuesday, October 22, 2002 3:34 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: authoritarianism


    Well, folks, you are free to discuss this on the list; my original
post said only that I would not engage in this discussion, and I won't.
But if you want to call Bush an authoritarian -- or if others wanted to
in the past call Clinton the same, or whatever else they want to call
him -- that's fine; indeed, it does have some connection to
constitutional law questions, just as the question of whether Harry
Blackmun was a usurper and enemy of mankind for writing Roe v. Wade
might have some connection to constitutional law questions.

    I stand by my prediction that throwing around vague pejoratives,
from "authoritarian" to "fascist" to "anti-American" to what have you,
will yield nothing useful.  In my view, these labels are simply not
conducive to thoughtful analysis (whether as to Bush or Lincoln or FDR,
as a recent post mentioned), because they end up primarily as labels
that one uses to insult one's enemies for behavior that would often be
tolerated or ignored in one's friends (one of the basic problems with
vague terms).  They also lead people on the other side to think that
one's emotions or political passions have gotten the best of one.
Democrats on the list, remember what you thought of people who used
overheated rhetoric about Clinton?  Were you likely to pay close
attention to them?  To be interested in engaging in substantive
discussions about them?

    But, look, if you want to do this sort of Bush-bashing, that's fine.
I'll sit the debate out, as I suspect will most Bush defenders, and even
many people who are on the middle on such amtters.  But if those who are
hostile to Bush think that it's productive to talk in those terms, be my
guests.

    Eugene

-----Original Message-----
From: Mark Tushnet [mailto:tushnet at LAW.GEORGETOWN.EDU]
Sent: Tuesday, October 22, 2002 10:50 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: authoritarianism



I'd like to add my voice to those opposed to the imposition of a
political-correctness standard for discourse on the list.  (In the
unlikely event that John Ashcroft or George W. Bush are list-members,
I'd be in favor of a "no personal abuse of list members" standard,
though.)

"Volokh, Eugene" wrote:




        Well, obviously there's lots of hostility to the Republican
Party on this list, and to various Republican office-holders.  There are
labels being thrown around, such as supposed "authoritarianism," a
singularly ill-defined term.  Look, if people want to loathe the
Republicans, that's fine.  I'm a Republican, and I think that a lot of
the charges being thrown around about the party are grossly insulting
and unsubstantiated.  But how on earth could one have a sensible debate,
on a constitutional law listserv, about a subject as mushy as
"authoritarianism"?


        If the claim is that the Administration -- or the Democrats in
Congress, or anyone else -- is proposing some proposal that's
unconstitutional, that's fine:  I'd love to talk about it.  But if the
debate focuses on the supposed character defects of Republican
officeholders, does anyone really think that this is likely to be
remotely enlightening?


        Let me give an analogy -- following Waco and Ruby Ridge, lots of
people I know were making pretty much the same sort of accusations about
Clinton et al.  Do you remember a single *useful*, interesting
constitutional law debate that was focused on the abstract question of
whether various members of the Clinton Administration were
"authoritarian" or "Orwellian" or "congenital liars" or "threats to
America" or whatever else?  I sure don't.  When the debates in the
Clinton era were focused on actual constitutional law questions, they
could be very productive; but when one side came to the issue with a
proclamation that Clinton was this or that or the other thing, and then
the Clinton defenders of course said that no, he wasn't, and it was
actually his enemies who were this or that or the other thing, they
almost never were.


        Exactly the same thing, I think, applies here.


        Eugene