modest proposal/patriotism thread

[Bob Sheridan]

My guess is that you could formulate a bare list of American verities 
along the order of Motherhood and Apple Pie, say Liberty, Freedom, Due 
Process of Law, Equality,  and yes, even Privacy (and of course let's 
not forget Property) , and round up enough votes to gather a consensus 
for passage. 

But once you start addressing questions such as, "But does Privacy 
include a right to abortion?" the experiment starts coming apart at the 
seam, as not even Sandy's 'forgetfulness drug' is apt to work. I think 
he suspects that himself in asking whether we would again adopt 
disproportional representation for tiny states and an electoral college, 
so-called. The question would hardly come up without memory of a rocky 
past.  As soon as you adopt a federal system, all the old federalism 
questions arise sooner or later. 

The thought experiment, interesting as it is, strikes me as starting the 
game of Monopoly all over again, which some of us seem to like to do.

rs
sfls

Sanford Levinson wrote:
> Dan asks an interesting question.  I think it is literally 
> inconceivable that a new constitutional convention starting from 
> scratch--let's say, for sake of the thought experiment, that everyone 
> took a "forgetfulness drug" at the start so that even if they were 
> made aware of the US constitutional system, along with all others in 
> the world today, they would have no reason to identify is as "our 
> own," with whatever emotional valence might be atached to it--would 
> end up with anything very close to our present Constitution.  Even if 
> we retained a federal system, which I strongly suspect we would, would 
> we really give the small states the extraordinary representation they 
> enjoy in the Senate and the electoral college, for starters.  As I've 
> asked repeatedly, would we really want a rigidly fixed-term presidency 
> impervious to genuine (and, by stipulation, merited) "loss of 
> confidence).  And I could go on (and will, in the forthcoming book).  
> If a "patriot" is one attached to the full embodiment of the 
> Constitution, as against its inspirirng principles set out in the 
> Preamble, count me out.  But is ANY rational person attached to the 
> Constitution in toto? 
>  
> There is also, of course, the matter of which rights we would choose 
> to protect today, and how we would choose to phrase the 
> rights-protecting clauses.  Would every one of them include a 
> "compelling interest" exception or a "so long as it doesn't threaten 
> national security" clause.  And so on.
>  
> sandy
>
> ------------------------------------------------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu on behalf of guayiya
> *Sent:* Sat 1/28/2006 9:50 AM
> *To:* Miguel Schor
> *Cc:* Volokh, Eugene; conlawprof at lists.ucla.edu
> *Subject:* Re: modest proposal/patriotism thread
>
>
> The discussion has indeed veered far from what I aimed at: exploring the
> scope and extent of today's constitutional consensus.  Let's try a
> different speculative tack.
> Suppose that a new constitutional convention were to be held.  (Recall
> that in recent years almost 38 states have called for one.)  Suppose,
> unrealistically,  that the delegates were today's 100 senators, and that
> they decided to start from scratch.
> Would there be an agreement at all?  If so, would it really look much
> like the current text?  I submit that the concerns and disputes would be
> vastly unlike those of 1787, and that most of us would find this
> prospect very alarming.
> Daniel Hoffman, a/k/a rootless cosmopolitan intellectual
>
> >
>
> ------------------------------------------------------------------------
>
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