A musing

Sun Apr 11 11:06:10 PDT 2010

You quote Will Rogers. I'll quote Mark Twain: "A lie can travel  
halfway around the world while the truth is putting on its shoes."

a

On Apr 11, 2010, at 12:57 PM, Paul Finkelman wrote:

>  confess to being like Will Rogers:  I only know what I read in the  
> newspapers.  There seemed to be lots of coverage about the screaming  
> at Rep. Lewis, including, I believe, an interview with him.  Was  
> that all made up?
>
> ----
> 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: Ann Althouse <althouse at wisc.edu>
> To: Paul Finkelman <paul.finkelman at yahoo.com>
> Cc: Robert Sheridan <rs at robertsheridan.com>; CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu 
> >
> Sent: Sun, April 11, 2010 12:21:41 PM
> Subject: Re: A musing
>
> 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.
>
>
>

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