A musing

[Ann Althouse]

Yes and yes.

a

On Apr 11, 2010, at 11:38 AM, David Cruz wrote:

> Sincere question for Ann:  Did any cameras verify that "fag(got?)"  
> was shouted when Barney Frank walked past?  Should we care?
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
> On Apr 11, 2010, at 9:24 AM, "Ann Althouse" <althouse at wisc.edu> wrote:
>
>> I'm sorry to read Paul's repetition of a mistake/lie about the n- 
>> word chant/yell at the black congressman. There were many video  
>> cameras there at the time and none have backed up the assertion  
>> that was made. Race is being used by opponents of the tea party  
>> movement. Isn't that immoral?
>>
>> Ann
>>
>> On Apr 11, 2010, at 10:55 AM, Paul Finkelman wrote:
>>
>>> 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
>>>
>>>
>>> www.paulfinkelman.com
>>>
>>>
>>> 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.
>>>
>>> rs
>>>
>>>
>>> _______________________________________________
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>>> _______________________________________________
>>> To post, send message to Conlawprof at lists.ucla.edu
>>> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>
>>> Please note that messages sent to this large list cannot be viewed  
>>> as private.  Anyone can subscribe to the list and read messages  
>>> that are posted; people can read the Web archives; and list  
>>> members can (rightly or wrongly) forward the messages to others.
>>
>> <ATT00001..txt>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
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>
> Please note that messages sent to this large list cannot be viewed  
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> are posted; people can read the Web archives; and list members can  
> (rightly or wrongly) forward the messages to others.

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