RE: A musing (and a weak defense)
Zietlow, Rebecca E.
RZietlo at UTNet.UToledo.Edu
Tue Apr 13 08:47:06 PDT 2010
Thanks to Michael for your thoughtful posting on this contentious
debate. Michael reminds me of the wise statement of the distinguished
southern writer William Faulkner - "The past is never dead. It's not
even past."
As anyone who has studied the incorporation debate, teaches federal
courts doctrine, or constitutional law in general knows, the past
continues to influence constitutional law in myriad ways.
Rebecca E. Zietlow
Charles W. Fornoff Professor of Law and Values
University of Toledo College of Law
(419) 530-2872
http://www.nyupress.org/books/Enforcing_Equality-products_id-4830.html
http://ssrn.com/author=291341
http://works.bepress.com/rebecca_zietlow/
http://www.essentiallycontestedamerica.org
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Curtis, Michael
K.
Sent: Tuesday, April 13, 2010 11:04 AM
To: Finkelman,Paul <paul.finkelman at albanylaw.edu>; Volokh, Eugene;
CONLAWPROFS professors
Subject: RE: A musing (and a weak defense)
One thing is clear from this discussion. It is that the way we see
these events is strongly influenced by our life experiences &
ideological predispositions. Some of us see the epithets, the tone of
the anti-Obama rhetoric, yelling that the president is a lair from the
floor of Congress (I don't recall that during the Bush years or during
my life), suggestions that a move in the direction of universal health
care practiced by virtually every western democracy is socialist,
Communist, or Nazi(however wise or unwise the plan may be), the bricks
thrown, the death threats, etc. as an indication that something
different and sinister is going on. Others suggest that this is
politics as usual; there is always a fringe, etc. And periodically there
are extremists of the left or right who have resorted to violence.
I grew up in the segregated South. South Carolina bolted from the
Democratic party in 1948 because it adopted a Civil Rights plank in the
platform, (and of course Truman had set up a Civil Rights Commission and
integrated the military. South Carolina voted for segregationist Strom
Thurmond in 1948--and if I recall right segregationist George Wallace in
1968. I saw the South defect from the Democratic Party after LBJ and
the Congress passed the 64 Civil Rights Act and 65 Voting Rights Act.
Gingrich recently suggested that LBJ had lost the South and the nation
for Democrats over Civil Rights and health would do the same for Obama.
(He later "clarified," but he was pretty much right the first time
Blacks were expelled from the Georgia Republican Party when the
Goldwater people took over. Southern Congressmen and senators,
Democratic and Republican opposed these civil rights acts--with the
exception in the Senate of liberal Democrat Ralph Yarborough from Texas.
Outside the South well over 70% of Republicans and over 90% of Democrats
supported the Civil Rights Act. In those days some things we bi-partisan
and there were progressive Republicans--RINOS as some would see them
today. I recall Senator Goldwater's opposition to both the 64 Act and
the 65Voting Rights Act and his victory in deep South states. I recall
the racial violence of the 1960s. I know that voting in South Carolina
is still racially polarized. There is more, but I will stop. To some
this is ancient history and of no current relevance. To me it is
yesterday. We have made great progress. That shows alas how old I am.
Things have moved a long way forward, but even back then overtly racist
rhetoric was often shunned in favor of appeals to "states rights."
Things are much better. Does the past still shape the present some in
South Carolina? I have no idea of Rep. Wilson's racial views.
Something motivates him to behave toward the president in a way that I
don't recall any other congressman ever behaving toward a president in
these circumstances. He thought, apparently correctly, that it would be
viewed ok at home and by the base. Has it helped with fund raising? For
some reason at the time he thought such behavior in these circumstances
was o.k. Whatever one thinks of the president, in the past I though
respect for the office prevented this sort of behavior by congressmen on
the floor of Congress. Something is different. I don't claim to know
just what it is. Where we come out seems to depend on where we go in.
Michael Curtis
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Finkelman, Paul
<paul.finkelman at albanylaw.edu>
Sent: Monday, April 12, 2010 6:34 PM
To: Volokh, Eugene; 'CONLAWPROFS professors'
Subject: RE: A musing (and a weak defense)
All I can reply is that it was a unique moment (as best I can tell) of
rudeness by a member of Congress that showed a deep lack of civility and
it is indeed my view that Rep. Wilson believed such rudeness was
acceptable in part because of the president's race. But Eugene is right
-- I cannot "prove" this. Eugene's sugestion that
Sent from my HTC smartphone
-----Original Message-----
From: Volokh, Eugene <VOLOKH at law.ucla.edu>
Sent: Monday, April 12, 2010 4:48 PM
To: 'CONLAWPROFS professors' <CONLAWPROF at lists.ucla.edu>
Subject: RE: A musing (and a weak defense)
And my view is that people who call others "racist" on evidence
such as this are likely just trying to shut up views that they
disapprove of, by using "racist" to demonize the opposition and thus to
better accomplish their own broader social engineering goals.
Can I demonstrate that? No. Can I read Prof. Finkelman's
heart? No. But of course neither can Prof. Finkelman read the
representative's heart, and yet he seems perfectly happy to label him
with what should rightly be out of the most pejorative adjectives in the
political vocabulary. He has his suspicions. I have mine. I would
have been reluctant to air them, just based on suspicion alone. But
seeing that he has no such reluctance, I don't see why I should have it
here. I want to repeat that I sincerely believe what I said above about
Prof. Finkelman specifically, and that I have long believed this about
Prof. Finkelman but until now had been reluctant to put quite this
baldly. I would normally have tried to keep names out of this, but
right now I want to stress again that I'm speaking specifically to
condemn Prof. Finkelman, whose posts I have long found appalling.
I'll say it again: Much as I want to see civility, I refuse to
allow such bullying and smearing to go unchallenged. If nothing else,
responding to it will let people on the left know that those of us on
the right aren't going to be pushed around -- a valuable message for
groups, especially groups that are a small minority of a broader group,
to convey.
But I'll also say it again: I would much prefer to see a truce,
in which people turn to topics and to modes of expression that are
actually likely to yield scholarly enlightenment to a community of
scholars. I will not unilaterally disarm. But if all of us can turn to
discussions of actual constitutional law, I think the list will be a
more useful resource.
Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Finkelman, Paul
> <paul.finkelman at albanylaw.edu>
> Sent: Monday, April 12, 2010 1:34 PM
> To: Frank Cross; Gilbert, Lauren; Robert Sheridan; Nelson Lund
> Cc: CONLAWPROFS professors
> Subject: RE: A musing (and a weak defense)
>
> No member of Congress as far as I know ever infterrupted a president's
speech
> yelling he was a liar. My view is that this level of incivility was
in part a function
> of the president being seen as "illegitimate" because he is black.
Just as people
> argue he is not a citizen despite the evidence. This is part of the
rising racism on
> the right and within some parts of the republican party. I would
comment on
> professor lund calling me a racist because of this but I am still
laughing because i
> assume he was joking.
>
> Sent from my HTC smartphone
>
> -----Original Message-----
> From: Frank Cross <crossf at mail.utexas.edu>
> Sent: Monday, April 12, 2010 2:17 PM
> To: Gilbert, Lauren <lgilbert at stu.edu>; Robert Sheridan
> <rs at robertsheridan.com>; Nelson Lund <nlund at gmu.edu>
> Cc: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
> Subject: RE: A musing (and a weak defense)
>
>
> While I did not care for Professor Lund's response, I think it was
> prompted by Professor Finkelman's claim that calling the President a
> "liar" was racist. Because President Bush was called a liar,
> President Clinton was called a liar, President Reagan was called a
> liar, etc., there is little reason to think that this is necessarily
> racist. I think claims of bigotry should be well founded, not
casually made.
>
> But this all goes to EV's point. And it seems that this list cannot
> have a highly reasoned discussion of ideological matters, as it can
> of constitutional law questions.
>
>
>
>
> Frank B. Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> McCombs School of Business
> University of Texas
> CBA 5.202 (B6500)
> Austin, TX 78712-0212
> 512.471.5250
>
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