A musing

Paul Finkelman paul.finkelman at yahoo.com
Sun Apr 11 08:55:11 PDT 2010

Robert writes;  "  Today we don't think opposition to discrimination against blacks to be 'liberal' but mainstream and the discrimination plain wrong as well as 
illegal and immoral.  What happened?  Where did the shift occur?"

Has the shift really occurred?  I think you only have to look at the racism of the right wing of the Republicans -- Rep. Wilson yelling out that Obama is a liar; tea party people yelling "nigger" at black members of Congress to see that substantial numbers of white Americans -- from the tea party crowd to South Carolina Congressmen to Glen Beck -- are deeply racist and deeply hostile, not only to blacks but to anyone who is not "white" but their definition of the term.  In much of the country it is also perfectly ok to campaign against Hispanics as long as you phrase it in terms like "illegal aliens" and "illegal voting."   I think vast numbers of Americans (look at the ratings of those who listen to the rants of Glen Beck and Rush Limbaugh; look at the suggestions over and over again that Obama is not an "American") do NOT think it is immoral to discriminate.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu


From: Robert Sheridan <rs at robertsheridan.com>
To: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
Sent: Sun, April 11, 2010 11:38:04 AM
Subject: A musing

Okay, why does Conlaw seem so difficult and strange?

We take it for granted that certain things are bad and should be illegal, such as 14th (and 5th for federal) Amendment equal protection violations in light of the premise in the Declaration, admittedly not law but somehow more important, that all men are created equal.  So why did it take so long to eliminate the exceptions for blacks, women, gays and so many others?  In hindsight, years later, the injustice seems so clear, doesn't it?

To take the most recent controversy first, Lawrence v. Texas, why was it so difficult to recognize equal rights for gays?  Why was it so hard to recognize equal rights for blacks?  And any disfavored minority as to whom the majority enjoyed, if that's the proper word, the power and the right to discriminate against, to lord it over, so much that the practice was taken for granted, almost as a God-given natural right not subject to question, until questioned sufficiently?

In the case of discrimination against gays, those objecting to the practice were either gay or deemed liberal.  Until lately, referring to Ted Olson and David Boies's representation in opposition to California's Prop. 8 anti-gay (marriage) initiative, few straight, relatively conservative activists came out publicly in favor of gay rights.  To do so was to be deemed a probable 'liberal,' a most politically incorrect, inconvenient label in many quarters.

Fifty years ago, coming out against discrimination against blacks was considered 'liberal' in the Hubert Humphrey sense.  Today we don't think opposition to discrimination against blacks to be 'liberal' but mainstream and the discrimination plain wrong as well as illegal and immoral.  What happened?  Where did the shift occur?

Justice John Paul Stevens, in reference to his announcement the other day that he'll retire come end of term, has been quoted as saying that he thinks of himself as a conservative (appointed by Pres. Ford, a Republican) and that each of his former colleagues has been replaced by someone more conservative.  Thus the Court has shifted to the right, not him.  Has Justice Stevens really become more 'liberal' as his service wore long?  First he favored the death penalty and then he opposed.  Did this make him liberal?  Or did his long service give him new eyes to see through ideology that no longer seemed real, or to work?  Is that liberal?  Conservative?  Realistic?  It seems as though he'd learned what not to believe, my working definition of 'wisdom,' until something better occurs.

Now the talk is all of nominating a suitable candidate in replacement of Justice Stevens.  Does Pres. Obama look for a liberal?  Aren't those pretty scarce, these days?  Isn't an admitted liberal an automatic disqualification for the position, a guaranteed filibuster?

What's the next closest thing to a disqualified liberal?  A qualified libertarian?  That is, a conservative who is so far right that s/he's coming around the other side?

The distinguishing feature of Stevens, imho, is his alleged growth into a person who has learned what not to believe.  Perhaps this makes it clearer for him to see certain things that now cause others, but not himself, to see him as a liberal when he is anything but.  He opposed indefinite secret detention of 'enemy combatants' at Guantanamo, insisting that American notions of fairness and decency required access to federal court and a fair hearing.  Is this 'liberal?'  Or protective of deep conservative values on which the country was built, as it was equal protection if one is willing to overlook the notion that the Founders didn't really believe in equal protection the way we do today.

So, now back to the question of what makes Conlaw so difficult and strange compared to some of the other, more routine legal subjects.  In order to escape the trap of continuing to engage in an unfair process, such as violations of equal protection or substantive due process, one must reach outside the vicious circle of the practice per se and pull a rabbit out of a hat, seemingly by magic.  By this I mean resorting to John Marshall's Big Axe, the power to show that the right  to continue the egregious practice no longer exists as a matter of Constitutional Law.  This is the hard, strange part, getting out of a long accepted practice by reaching deep into Conlaw for the solution, or to continue the cuttng analogy, for the blade to cut the Gordian knot of seemingly unending past practice.  It almost seems magical.  Are the magicians who accomplish such feats liberal?  Is Justice Scalia a liberal when he upholds jury power, upholds the right to
 confrontation not only physically but in opposition to important hearsay use, as in Crawford v. Washington?

Perhaps our labels leave something to be desired as political characterizations.  For Obama to nominate a liberal is to go looking for a fight with the political Right.  To look for a conservative is a worse fight, with his own base.  Perhaps he should look for a person who has shown some inclination not to believe a good deal of the conventional wisdom of either camp, liberal or conservative, someone willing to figure things out anew for him/her/our sakes in light of basic values.  Anyone else is bound to seem disappointing, would you disagree? 
Perhaps it takes a long time for a justice to achieve the confidence to see things anew.  I'm thinking of Justice Harry Blackmun and his refusal to tinker any longer with the mechanism of death.  His authorship of Roe was not all that 'liberal' at the time.  He may have been upholding doctor's rights more than women's.  What about Earl Warren?  He'd led a long active legal and political life before becoming Chief Justice and leading the Brown v. Board decision in 1954.  Was he a liberal?  He was a Republican who'd been an aggressive prosecutor and California governor (and attorney general) who had advocated in favor of the American/Japanese internments on the West Coast after Pearl Harbor.  He was conservative then.  Impeach Earl Warren!  Too liberal when he got on the Court?  Or had he learned what not to believe, that separate was equal, and applied conservative values to debunk that?

Please, someone willing to question unquestioned beliefs.  Perhaps this disqualifies young ideologues, unlikely to change.  Perhaps I'm wrong.


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