The Left, patriotism, and threats to the constitutionalorder
Chambers, Hank
hchamber at richmond.edu
Sat Jan 28 04:51:13 PST 2006
Eugene wrote:
1. I think I understand Prof. Magarian's frustration here.
This is how I often react to talk of supposed fascism, or for that
matter supposed racism. Some words are so often used carelessly that
one sometimes wishes we moved away from them altogether.
Unfortunately, I suspect Eugene will never understand my frustration at his linking of claims of supposed fascism to claims of supposed racism. It appears simply to be a gratuitous slap at the notion that racism is as prevalent as many claim. This is ironic given how little race - a central feature of American life that has significant implications for constitutional theory and interpretation - has been discussed on this list.
Of course, one's inability or refusal to see racism surely does not mean it is not there.
-Hank Chambers
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sat 1/28/2006 12:35 AM
To: conlawprof at lists.ucla.edu
Cc:
Subject: RE: The Left, patriotism, and threats to the constitutionalorder
Nonetheless,
though I much disapprove of the abuse of the word "fascism," if some
politician took over government, forcibly suppressed the opposition, and
called himself "Il Duce," I'd have a hard time resisting the aptness of
the term "fascism" for that. That a term is sometimes abused doesn't
keep it from sometimes being quite correct.
2. What's more, the notion of patriotism is tremendously
important -- it's one of the great forces of world affairs -- and we
slight it at our peril, as this very thread shows. To review the
bidding, this started with Prof. Hoffman's questions, in a thread whose
subject line was "the ever more mysterious Democratic Party": "Why
shouldn't the blue states hold a convention, a la Hartford, and
consider the appropriate terms for remaining within this union?" "If
remedies within the constitution, such as impeachment or decisive
electoral success, are not available--why not secede?" It seems to me
that these questions simply can't be answered without thinking of
patriotism.
It also seems to me that these questions couldn't really be
asked, at least at this juncture, unless the questioner missed something
pretty important about patriotism and its role in American life. No
secession movement will come remotely close to getting off the ground --
because Americans are by and large quite patriotic, and losing a few
elections and getting upset at their fellow countrymen isn't going to
lead them to try to secede from America, or to try to break it up. Nor
are they much detained, I think, by the interesting philosophical
discussions we've seen about exactly what patriotism means. Their
notion of patriotism is, I think, very much about love of one's country
-- in this instance, the USA -- and not of some abstract attachment to
constitutional principles of which the most emotionally salient ones
(liberty and equality, not the Electoral College or even federalism) are
aspired to in many countries. As Burke said, "Abstract liberty, like
other mere abstractions, is not to be found. Liberty inheres in some
sensible object ...." Likewise, abstract allegiance to the Constitution
is not to be found, except perhaps in a very few; love of nation (or of
a similar group) has a concrete force that love of constitutional
principle rarely possesses.
Likewise, no sane Democratic politician would remotely suggest a
convention or anything remotely smacking of secession, because he'd
realize that people will ostracize him from political life for not being
a patriotic American. And there'd be little that he could do to respond
to that charge, because it would be highly plausible. (As I've said
before in this thread, and I'll say it again now, there's nothing
immoral about being unpatriotic; perfectly decent people may not be
patriotic Americans, and may even have little love for America as a
country or as a government. They just are unlikely to get elected to
office in America, and for good reason.) Here too understanding and
discussing patriotism is important to the analysis.
I'm happy to affirm, as I did at the start of this thread, that
most Democrats are patriotic, and that most critics of the
Administration are patriotic. I'll also gladly admit that charges of
lack of patriotism, like charges of fascism and (to a lesser extent)
racism, are thrown around with little foundation. But this hardly means
that no support for an idea can ever be unpatriotic, fascistic, or
racist. And if we are unwilling to consider the possibility that
secession from America -- especially on the rather modest provocation
that seems to be at stake here -- is not patriotic, will not be seen as
patriotic, and will thus be a political disaster, then we can't answer
the questions that Prof. Hoffman posed.
3. Finally, let me offer a tentative thought, which I tie again
to the principles of constitutional analysis: My sense is that some,
especially on the Left and on the academic Left are -- while not
precisely unpatriotic -- not terribly pleased by patriotism. They
identify it as a force that's often nonrational, destructive, and
clouding of rational judgment. *They are entirely correct on this*, so
far as it goes (though I think it sometimes misses the tremendous value
of patriotism as a tool of national survival). They also find
themselves often in more sympathy (both political and cultural) with the
elites in foreign countries, especially in European welfare states, than
with the American mainstream, and in particular the American mainstream
in the "red states." Let me stress that I think *this is a perfectly
decent and defensible position*, though one that I don't myself share.
These people don't "hate America." They may love much about America,
and may love America in many senses. (Love is a complex and sometimes
ambiguous matter.) But they are uneasy not just with talk of patriotism
or with displays of patriotism, but also with patriotism itself.
Yet -- and here again this discussion ties to discourse about
constitutional law -- it seems to me that this normative judgment,
eminently respectable as it may be, may lead some people not to
understand the actual objective importance of patriotism (precisely in
the sense of nonrational and often rationality-obscuring attachment to
one's country) in American affairs. Actual American political leaders,
past and present, have not worn such blinders (at least so far as they
have remained actual American political leaders). But I wonder whether
the straightfaced speculation about just why secession isn't on the
table may reveal that some American academics may indeed have something
of a blind spot here.
Eugene
> -----Original Message-----
> From: Greg Magarian [mailto:magarian at law.villanova.edu]
> Sent: Friday, January 27, 2006 4:55 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: Re: The Left, patriotism, and threats to the
> constitutionalorder
>
>
> I took the notion of secession as entirely theoretical, which
> was the spirit in which I (and I think several others)
> engaged it. My mention of revolution, for example, was not
> meant to posit revolution as the only viable alternative to
> secession, as Eugene seems to have inferred, but rather to
> situate both impulses in theoretical relation to the idea of
> patriotism.
>
> If the discussion of patriotism is intended as anything other
> than fanciful, then -- with respect -- I don't see how it's
> constructive.
> The idea of patriotism has much more emotional force than
> analytic content, and challenges to the patriotism of a
> person, party, or region rarely amount to anything more than
> character attacks. Calling someone unpatriotic based on her
> advocacy of an idea -- even an idea as outlandish as
> secession -- has the unfortunate tendency to chill vigorous
> (if sometimes stupid, misguided, or offensive) political
> debate. Do "people on the Left [or Right] who are criticized
> as unpatriotic" owe their critics any response at all? I'd
> be more interested in the critics' explanation for invoking
> an idea far more prejudicial than it is probative.
>
> Gregory P. Magarian
> Professor of Law
> Villanova University School of Law
> 299 N. Spring Mill Road
> Villanova, PA 19085
> (610) 519-7652
> >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 01/27/06 6:49 PM >>>
> I appreciate Bobby's point, which lets me connect this
> further to constitutional law (recognizing the justice of
> various list members' admonitions that we ought to keep this
> tied to constitutiona law): Is the claim of those on the
> list who are taking the secession suggestion seriously really
> that the Bush Administration's actions will make it
> impossible to change the government in two years? That the
> Administration will cancel the elections? Outlaw the
> Democratic party? Ban pro-Democrat speech? Blackmail leading
> Democratic candidates into withdrawing? That is, it seems to
> me, would be a matter for constitutional discussion, both as
> prediction of the effects of certain actions on the
> constitutional order, and as an analysis of whether
> particular actions should be seen as violating constitutional
> law rules that are aimed at preventing this sort of
> entrenchment. But I want to make sure I understand whether
> this is indeed people's claim.
>
> As to the ambiguity of the concept of "American
> patriotism," I think it would indeed be very interesting if
> people on the Left who are criticized as unpatriotic respond
> with "The intuitive notion of 'American patriotism' needs
> serious explication before its use in calling someone a
> patriot (or not) is analytically and politically useful." I
> had not thought, though, that this was the conventional response.
>
> Eugene
>
> -----Original Message-----
> From: RJLipkin at aol.com [mailto:RJLipkin at aol.com]
> Sent: Friday, January 27, 2006 3:42 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: Re: The Left and patriotism
>
>
> In a message dated 1/27/2006 5:39:37 PM Eastern Standard
> Time, VOLOKH at law.ucla.edu writes: But if one just thinks that
> the Bush Administration has done a lousy job
> -- or violated FISA or claimed constitutional powers that it
> wasn't entitled to or violated the Free Speech Clause by
> closing immigration proceedings to the media -- and calls for
> secession because he finds it impossible to wait for two more
> years to see if maybe the Democrats can win 51% instead of
> 48%, then it seems to me that one shouldn't (and shouldn't
> even want to) call oneself a patriotic American.
>
> It strikes that this argument founders on this
> question: To what must a patriotic American must be committed
> to qualify as patriotic. Unless the object of the commitment
> is identified and its parameters delineated, we will continue
> to talk past one another.
>
> Further, Eugene's example of someone wanting to
> succeed out of impatience for a change that might occur in
> two years is a straw man [sic person]. A person wanting to
> secede now in light of the present the administration's
> reconstruction of executive power--if that's what happening
> or if it is believed to be happening--probably bases his or
> her conviction on empirical claims about the possibility of
> change in two years, not just an inability to wait. These
> empirical claims may or may not be true, but to suggest the
> advocacy of secession is motivated merely by impatience is to
> present a caricatures of the claim, not a serious version of
> the claim itself.
>
> Again, before we make sense of "American patriotism"
> and how it should be used in contemporary debate, the object
> of the patriotic commitment must be specified. Is it the
> present government? The Revolution? The Constitution?
> National Defense? American culture? The continuing entity
> known as the United States whatever that is? Nostalgic
> feelings of the idea of America as inculcated in us in
> childhood? What? The intuitive notion of "American
> patriotism" needs serious explication before its use in
> calling someone a patriot (or not) is analytically and
> politically useful.
>
> Bobby
>
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
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