A musing

[Curtis, Michael K.]

Sometimes (from my perspective) things go backward too.  I am not sure
exactly what happened in Va. re an executive order banning
discrimination in state employment based on sexual orientation, but it
seems the Gov. and AG have effectively nullified it and the AG has said
that state universities cannot have policies against discrimination
based on sexual orientation.  If anyone knows the legal details, I would
be interested in a better understanding.

Michael Curtis

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert Sheridan
Sent: Sunday, April 11, 2010 11:38 AM
To: CONLAWPROFS professors
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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