the ever more mysterious Democratic Party

[Sanford Levinson]

I'm actually more in agreement with Bobby than he may think.  I agree completely, for example, that we should be less court-centered.  Although I would like to see the nomination of Alito blocked, I cannot in good faith say that I think it will mean the end of the world if he makes it since the worst thing he can do is uphold exertions of illegitimate authority by the White House, and this means that our major concern should be whom we elect to that officed (and to the Congress) rather than who gets on the Court.
 
I also agree with Bobby that Schmittian leadership is very dangerous indeed.  There is much to admire in his sketch of the Revolutionary vision behind the United States.  And, obviously, I share his view that we have to be far more attentive than we often are to what constitues a "constitutionalist culture" as against simply debating about formal structures or rules.  I probably overreacted to what I viewed as his underestimation of the importance of "leadership" and, perhaps, to what I still view as his fatalism with regard to mounting an effective campaign against Alito.  
 
sandy
________________________________

From: RJLipkin at aol.com [mailto:RJLipkin at aol.com]
Sent: Thu 1/26/2006 5:11 AM
To: Sanford Levinson; lawcourts-l at usc.edu; Conlawprof at lists.ucla.edu
Subject: Re: the ever more mysterious Democratic Party


In a message dated 1/26/2006 3:02:11 AM Eastern Standard Time, SLevinson at law.utexas.edu writes:

	Although I am sympathetic to Bobby's vision of a leaderless basically anarchist social order, I also think it is a utopian fantasy.  Any plausible theory of the constitution has to include a place for what Hamilton called "energetic" leadership and then figure out whether there is indeed a way to prevent such a leader from ending up as a dictator. 

        Today's utopian fantasy may become tomorrow's political necessity.  Consider Gordon Wood's take on "utopian fantasy:"
 

The Founding generation was, as Gordon Wood exclaims, "expressing nothing less than a utopian hope for a new moral and social order led by enlightened and virtuous men." Gordon S. Wood, The Radicalism of the American Revolution 189-90 (1992). Our "republican revolution was the greatest utopian movement in American history. The revolutionaries aimed at nothing less than a reconstruction of American society. They hoped to destroy the bonds holding together the older monarchical society-kinship, patriarchy, and patronage-and to put in their place new social bonds of love, respect, and consent." Id. 229.

 

My suggestion to redirect our energies away from court-centered politics by imposing external constraints on what the Court can do, if utopian at all, is hardly as fantastic as the utopianism of the founding generation. 

 
        Further, I am not advocating "a leaderless basically anarchist social order." Indeed, energetic leadership should derive from the electorate as a whole (sometimes) at other times from groups and, of course, even individuals. What I oppose is a reliance on what Sandy called "great leaders[ship] creating new possibilities."  If this ever occurs, I suspect that it is also true that for every such occurrence, there are far more instances of what some consider "great leadership" creating human misery and devastation. Moreover, commitments to "great leadership" permits taking seriously such disreputable writers as Carl Schmitt. This is a move, in my view, we should resist.
 
        Charges of utopian fantasy, and we all make them, are conversation stoppers.  And perhaps, they should be. But in essence they reflect a commitment to a certain paradigm of political organization despite the fact that the paradigm--which indeed might have produced some good in the past--is no longer doing so. We can argue about gutless Democrats, filibusters, nuclear options, and so forth interminably without seriously reexamining judicial constitutionalism in American government or the problem of the more dangerous dictatorial inherencies in executive power. 
 
        The choice between arguing passionately from within existing paradigms and challenging those paradigms in part or in whole is almost always a choice we must make.  But let's make it understanding that the former arguments have changed little in American politics.  Perhaps then we should take seriously the need for challenging and perhaps rejecting--no matter how utopian that rejection might now appear--a set of paradigms that no longer enhance, or even permit the optimal functioning of, republican democracy. In the heat of argument from within these paradigms, I doubt such a suggestion will be or even can be taken seriously. But when this particular battle is over (and probably lost on both sides), then perhaps the suggestion to rethink judicial constitutionalism will receive a more enthusiastic welcome.
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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