Why No Secession or Talk of Secession?

[Miguel Schor]

I think there is a difference between constitutional battles present and
past.  Social movements that want to change the Constitution have two paths
they can take.  One is to transform public opinion, the other to change the
make-up of the Court.  The transformative moments of the past-the
revolution, the civil war, and the New Deal-all created a new constitutional
consensus.  Social conservatives are obviously unable to fashion a consensus
as to their goals and have, therefore, chosen the path of changing the
make-up of the Court.  

There are, and this is Bobby's point, some negative implications flowing
from this strategy.  Democracy rests on the alternation in power between
competing factions.  Constitutions play an important role in making this
alternation possible as the losing side knows that there are limits to what
the winning side can do.  There has been some real slippage, however, in the
protections afforded by the Constitution for 2 reasons.  One is that the
Court has a number of members who are closely identified with social
conservatives.  The other is that the administration has exercised
considerable authority in the wake of 9/11 and strenuously resisted any
oversight.  In any case, if anyone is interested I have a work in progress
that goes into these issues in greater detail. Miguel

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Wednesday, June 28, 2006 11:57 AM
To: jfnbl at earthlink.com
Cc: Conlawprof at lists.ucla.edu
Subject: Re: Why No Secession or Talk of Secession?

 

        I don't think the polarization during the Civil Rights era comes
close to the present polarization.  I'm not sure I know who falls into "the
general public, but ordinary, good folks I talk to love or hate what's going
on now. Two anecdotal examples: My dentist thinks it's crazy not to conduct
warrantless searches, while a lab technician disallows any talk of Bush in
her presence. I think this is atypical, but of course anecdotal evidence is
not particularly significant evidence. In the present circumstances--War,
oil prices, and so forth--I can't see how close elections can mean the
absence of polarization.  Maybe in other circumstances, but not these.

 

        Of course, I agree with John that even if the polarization turned to
talk of secession, which of course it has not, the prospect of seriously
considering secession is nil. I recognized that in my original post, and
wanted to know why. Doug and John both helped to enlighten me.

 

Bobby

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

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