The Left, patriotism, and threats to the Capacity of My In Box

Volokh, Eugene VOLOKH at
Mon Jan 30 10:20:07 PST 2006

    Well, one poster did say -- with little by way of cues that this was
just a joke or a purely academic hypothetical, that "The country is
bitterly divided politically and culturally, and largely failing
seriously to pursue the general welfare. Why shouldn't the blue states
hold a convention, a la  Hartford, and consider the appropriate terms
for remaining within this union? One way of looking at our situation is
that after Lincoln placed the union before checks and balances, the
north won the war militarily but
lost it politically, ironically sacrificing key aspects of both
federalism and civil rights and liberties in the process.  The most
conspicuous benefit is that we have been able to pursue our failed
imperialist agenda, with all the burdens thereunto appertaining. If
remedies within the constitution, such as impeachment or decisive
electoral success, are not available--why not secede?"  He then went on
to write "Why would Bush's government be compelled to resist a secession
movement, forcibly or otherwise?  If it's obvious that Bush would
emulate Milosevic and not Havel, what does that say about Bush?  It
would further his domestic agenda if New York, 
Hollywood, Boston and other liberal dens of iniquity were gone.  Surely
the downside is not just that red states, unwilling to tax themselves,
need the federal subsidies they get from blue states?  How do blue
states benefit?  Likewise, why wouldn't both sides gain if pro-life
states seceded?"  Another wrote "With regard to 'economic
practicalities,' has anyone done a study of the relative economic
contributions of the 'blue' and 'red' states, and which states pay more
taxes than they receive benefits from the federal government, and which
pay less taxes than they receive benefits?  It seems clear that the blue
states are the economic and technological engine of 
the U.S., so perhaps secession would not be economically harmful to
them. The present administration and its supporters also tend to be
pretty anti-science, and becoming more so every year, so it may be that
secession would create a healthier climate for technological progress in
the future."
    If indeed this was all facetious, or speculation of the "I surely
think this is a bad idea, but what would happen if . . ." variety, I'm
pleased to hear it.  It just didn't seem that way to me.
    Nonetheless, I agree that it would be better if we returned to
rigorous, interesting discussions about constitutional law, and not
about "the ever more mysterious Democratic party," or about secession
(except insofar as we're talking about the constitutional law of
secession), or about whether the 2004 election was -- despite the
seeming consensus to the contrary -- stolen through massive voter fraud,
or whether President Bush believes "l'etat c'est moi," or a variety of
other things.  (Of course, if President Bush's supposedly quasi-royalist
beliefs are relevant enough to constitutional law to count, then
presumably patriotism, one of the most important defenses of the
national constitutional order, would be as well.)

-----Original Message-----
From: Marty Lederman [mailto:marty.lederman at] 
Sent: Saturday, January 28, 2006 6:46 AM
To: DavidEBernstein at; mschor at; Volokh, Eugene
Cc: conlawprof at
Subject: The Left, patriotism, and threats to the Capacity of My In Box

Are there any "secessionist" fans among us?  Any non-patriots (as if
that appellation could possibly shed more light than heat)?  Am I the
only one who thinks that this listserv has increasingly veered far from
its ostensible subject and who yearns for the Good Ol' Days when we
actually used to have rigorous, interesting discussions about, uh,
constitutional law?  (No, really:  they actually existed for at least a
month or two there, back before Bush v. Gore.)  
I know that's very Twentieth-Century of me, but I'm an old-fashioned
guy; and anyway, I have an ulterior motive -- namely, getting info from
this learned assemblage on the constitutional (history) question I asked
last night.
P.S.  I do have a very capacious view of what counts as "constitutional
law."  Really.  Just sayin' . . . 

----- Original Message ----- 
From: DavidEBernstein at 
To: mschor at ; VOLOKH at 
Cc: conlawprof at 
Sent: Saturday, January 28, 2006 9:27 AM
Subject: Re: The Left, patriotism, and threats to the

I'm just wondering how many of you secesssion fans think that there
should have been secession during WWII, when FDR claimed far broader
presidential powers than Bush has ever claimed, and in fact sent the AG
to tell the USSC that he was going to execute the conspirators in the
Quirin case regardless of what the USSC held in that case?  And let's
not even get started on Woodrow Wilson... I sense a distinct lack of
historical perspective here.
In a message dated 1/28/2006 9:06:25 AM Eastern Standard Time,
mschor at writes:

If love of a quasi-mystical sense of country and not love of
constitutional principles now binds the nation together, then President
Bush has little to fear when he claims that no law limits his mandate to
protect our nation.

David E. Bernstein
Visiting Professor
University of Michigan School of Law
George Mason University School of Law


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