The Left, patriotism, and threats to the constitutional order

Sun Jan 29 13:55:26 PST 2006

Aha! But the "real" threat currently is the continuation of "facially" valid
elections that have been "stolen" through (1) gerymandering, and (2) fixed
computer voting technology owned by big-businesses with ties to one party
(as per the many Ohio counties allegedly reporting more votes in the 2004
presidential election than possible based on their populations).  A problem
enhanced by  the big-business-owned-consolidated press refusing to take the
reports seriously. I am not claiming that I can "prove" the 2004 election
was stolen, but I also not sure that it was not.  Nor am I sure that if it
were, the media and government would discover the "theft" or take action to
fix the theft.  Remember the core role of an independent press? A strong
check on government overreaching? That view is certainly not supported by
the current Republican party or DOJ.

   But the Supreme Court has decided to hear the Texas redistricting case,
so perhaps (very perhaps) some checks still exist.  

   Much as I dislike Judge Alito's social value system and his (in my
opinion) outcome based misuse of precedent, my biggest problem with him is
his apparent unwillingness to be part of a Supreme Court willing to check
executive over reaching.

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Friday, January 27, 2006 8:44 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: The Left, patriotism, and threats to the constitutional order

Just to make the point doubly clear, I will repeat what I've said in an
earlier post.  For all of my concern about the "dictatorial" tendencies of
this Administration, I would in fact answer all of Eugene's questions in the
negative.  Even in my darkest moments, I do not envision George Bush even
claiming the right to run for a third term, let alone cancelling elections,
etc.  But I'm not sure this completely negates the point I (and others) have
been trying to make with regard to the notion of Executive Power during the
term of office.  Considerf the Mexican presidency, for example.  I believe
that all of them in fact left after their single six-year term.  But
certainly some were accused, I gather justifiably, of governing in a
dictatorial fashion.  And, for that matter, the greatness of Lincoln
includes his having altogether real elections in 1864.  But that doesn't
completely answer the point as to whether some of his actions as president
crossed some line of constitutional propriety.

sandy

  _____  

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Fri 1/27/2006 5:49 PM
To: conlawprof at lists.ucla.edu
Subject: The Left, patriotism, and threats to the constitutional order

        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
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20060129/83941be7/attachment.html