Speaking of arrogation of power

RJLipkin at aol.com RJLipkin at aol.com
Fri Apr 6 09:06:42 PDT 2007

With all due  respect, I couldn't disagree with Gene's point more. Any 
vibrant  constitutionalism has at least three levels of norms: (1) text, (2)  
justified inferences from text, etc--both actionable--and (3) the morality or  
meta-morality of the texts and inferences from the text. The question I  asked 
Eugene was based in the distinction between deontological norms,  
rule-consequentialist norms and act-consequentialist norms. Roughly, I  asked Eugene whether 
his condemnation of Ms. Pelosi's Syrian trip  meant the he beleives that it's 
always improper for Speakers to visit our  enemies, or whether its propriety 
depends on the particular circumstances, or  whether he adopts a rule making it 
improper to do so allowing  for exceptions built-in to the rule. I assumed, 
perhaps presumptuously,  that Eugene held neither deontological norms or 
act-consequentialist  constitutional norms. Hence I understood Eugene's complaint to 
derive from  a rule-consequentialist perspective. If so, that meant that the 
general rule  against such trips had exceptions.  In effect, my question asked 
him  what sorts of circumstances would be built-in the rule as exceptions. 
That  is, I asked Eugene in which circumstances is a Speaker permitted or 
required  to visit our enemies.
This is not just endless debate  about partisan political views. Rather, it 
is an inquiry into the meta-morality  of American constitutional law and 
theory. Does the last category exist? What's  it good for?  Why do you think it's 
part of constitutional theory? What  sort of norms do we believe grounds our 
constitutional  judgments?    Without publicly identifying category (3) of 
constitutional norms, in my view,  means that one's constitutional understanding is 
limited. Hence, again in my  view, this inquiry is essential to our List's 
purpose unless the  List eschews constitutional theory as irrelevant to 
constitutional  adjudication.  Inquiring into when constitutional failure to reign in a 
 president guilty of catastrophic leadership--when impeachment for whatever  
reason is out of the question--is essential to our understanding of the  
government the Constitution creates. Indeed, it isn't even required to argue  about 
this current administration failures (or not), one could ask this question  
in entirely general (neutral) terms. And our responses will probably be  tied 
to inextricably to different constitutional understandings.  I  would be quite 
astounded in these sorts of questions were unrelated to the List'  purposes.

Robert Justin Lipkin
Professor of Law
Widener University School of  Law

Ratio Juris,  Contributor: _  http://ratiojuris.blogspot.com/_ 
Essentially Contested  America, Editor: 
_http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) 

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