Speaking of arrogation of power

[Mark Tushnet]

In the spirit of this post, I wonder (a) whether there's a useful
category of "constitutional pathologies" distinct from the category of
"unconstitutional actions [whether or not those actions are
justiciable]," and (b) if so, whether we might be able to identify the
conditions under which such pathologies arise.  (For the moment, my
tentative answer to (a) is "Yes" and to (b) is that ideological
political parties play a large role, generating different pathologies in
times of unified and divided government.)  But I'd be interested in
others' views.

 

Mark Tushnet

William Nelson Cromwell Professor of Law

223 Areeda Hall

Harvard Law School

Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Friday, April 06, 2007 12:42 AM
To: VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
Cc: RJLipkin at aol.com
Subject: Re: Speaking of arrogation of power

 

It might be helpful if Eugene would specify just how Ms. Pelosi was
"carrying on foreign policy." She cannot negotiate any treaties, appoint
any ambassors, or even for that matter, guarantee any economic aid.
Indeed, even if she was inclined--and it's not clear that she was--she
could not make any sort of promise to Syria for future consideration.

 

That said, I would like to pose the following question to Eugene. There
are many Americans, like me, who believe Mr. Bush's invasion of Iraq and
the failures that ensued are examples of the least responsible, least
competent, and most morally bankrupt phase of American foreign policy in
at least my lifetime. His mistakes, I fear, have caused a multifarious
range of problems that will take Americans decades to overcome. In my
view, whatever general rules about the conduct of congresspersons have
little purchase at this time. 

 

But, I'm sure, Eugene will disagree.  Fair enough.  What I am intensely
interested in is what, in Eugene's view, would warrant a Speaker of the
House to actually carry on foreign policy--whatever that would
like--because the President has dangerously spent our moral capital and
put our role in the world and our safety in an extremely perilous state.
Alternatively stated, is Eugene's condemnation of Ms. Pelosi based on a
general (exceptionalness) principle that Speakers should never carry on
foreign policy? If not, then what are the circumstances that would
warrant a Speaker to act in this fashion?  More generally, I suspect
some conservatives and some liberals differ on what they believe is
appropriate political action because their perceptions of our
circumstances differ radically.  If that's right, then what kinds of
circumstances need to exist before governmental officials and ordinary
citizens can conclude that the situation cannot be governed by having a
"business as usual" attitude. What circumstances would have to exist
before it was morally permissible or required to engage in any legal
conduct which attempts to rectify a contemporary disaster however
unusual that conduct might be? 

 

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

Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
<http://ratiojuris.blogspot.com/> 
Essentially Contested America, Editor:
http://www.essentiallycontestedamerica.org/





________________________________

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