A somewhat ranting question
MGRABER at gvpt.umd.edu
Tue Oct 26 13:15:13 PDT 2004
Constitutional democracies survive only when they produce outcomes that
crucial elites regard as satisfactory. I suspect some crucial elites
are Democrats and some are Republicans. They need to be accommodated.
This by the way transcends elections. Among the numerous constitutional
stupidities bequeathed to Americans by Abraham Lincoln is the
destructive notion that a party can do whatever it wants (within that
party's notion of constitutional limitations) as long as that party has
fairly carried an election.
Mark A. Graber
>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 10/26/04 04:09PM >>>
The Senate operates under a number of informal understandings that are
necessary if the institution is to operate, including a lot of
"unanimous consent" that allows not reading the previous day's
Congressional Record and the like. Under my hypothetical, should Senate
Democrats collaborate in allowing the Senate to function, without
engaging in peace-pact like negotiations with Bill Frist?
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
Sent: Tuesday, October 26, 2004 2:30 PM
To: conlawprof at lists.ucla.edu
Subject: RE: A somewhat ranting question
Stealing from Wayne Moore, legitimac does not strike me as a dicotomous
variable. One election tainted by dubious manuevers probably does
little to weaken notions of legitimacy among the elite. But to answer
Sandy's questions, I think there will be severe problems, related to
legitimacy if Republicans continue to gain office in ways that too many
Democrats regard as constitutionally doubtful.
>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 10/26/04 03:23PM >>>
What would it mean for a Democrat not to accept that the United States
had a legitimate government.
1) It would simply be a belief with no action components. I would
continue to obey all laws passed by the Republican Congress, mostly
because I suspected I would be (illegally) thrown in jail if I did not.
2) When the Democrats took back power, we would recognize no Bush
Administration laws as valid.
3) What actions would I take if I believed Bush illegitimate. Redouble
my efforts to beat the coalition the next time.
In short, there is a sense in which many of us already believe 1). Bet
many Democrats in 1876 also believed 1). What else is Sandy asking?
I'm genuinely not sure "what else" I'm asking. At one level, it would
simply describe a greater-and-greater alienation from the (national)
government. But, as Bill Clinton might put it, I'm lucky enough to be
in the economic group that will benefit from Bush's economic policies
(at least in the short run), and I'm too old to move out of the country.
But the next level is that some people would actually turn out to be
serious in their "threats" to emigrate. And the final level, of course,
is developing greater sympathy with the Michigan Militia movement, which
I certainly do not advocate. But what would be the consequences of a
bunch of more-of-less respected people making real arguments about
"legitimacy," rather than simply saying that the (legitimate) government
is a bunch of rascals to be voted out in the next election? (Perhaps
nothing at all, since no one takes our rants seriously.)
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