A musing (and a weak defense)
Robert Sheridan
rs at robertsheridan.com
Tue Apr 13 08:55:02 PDT 2010
SPOILER ALERT, FAIR WARNING, GET A GRIP ON YOURSELVES: this post
comments on the fraught subject of ideology in Constitutional War, I
mean Law:
Prof. Curtis has a much appreciated way of pouring the oil of reason,
informed by long experience, on troubled waters.
Prof. Cross comments:
"And it seems that this list cannot have a highly reasoned discussion of ideological matters, as it can of constitutional law questions."
Prof. Volokh comments:
"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."
***
If I may be permitted to observe, both the Cross and Volokh comments put their finger on what, to me, is the heart of Constitutional Law, the ideologies on which it is founded. This is more important to understanding Conlaw than tracing a line of cases, a technical matter of close reading that doesn't necessarily require a great deal of understanding as to what drove the opinions in the first place. Try understanding Marbury w/o understanding that Marshall was a 'Federalist' and what that meant in the context of his time. We call that the essence of understanding Conlaw. It was hugely ideological then, and perhaps even now in various guises, such as 'states rights.' Conlaw IS ideology. The commutative principle applies.
The fact that we can drive each other to anger, frustration, name-calling, etc., anything but what might pass for scholarly or academic discussion, shows the importance of ideology in dealing with Conlaw. To suggest that this list would be a better place by intentionally withholding discussion of the ideology underlying the cases would be to cut the heart not only out of the list but of the law we try to discuss. Better to condemn the bullying of Prof. Lund's invective than to condemn anyone as 'racist' and urge self-censorship on the ground that the audience can't stand the invective. This would be a triumph of the heckler's veto. If someone suspects that another is 'racist' let him say why and condemn the argument rather than condemn the man. I've been reading Prof. F's comments for years w/o ever having imagined him the least bit racist, quite the contrary. But I've also seen the attempt of Mr. Lund to bully others into silence or submission by calling them bigots, speaking of scholarly debate. I thought that practice to be over the line. Anyone called a bigot by him can't be all bad.
What I think we really need to do is to figure out a way to approach the conflicting ideologies and to discuss them w/o initiating personal attacks on our ideological adversaries, i.e those who see the world differently than us, meaning a lot of people. Politically we fall into a few well-known camps: liberal, conservative, other. We have difficulty discussing these with each other w/o name calling. Law professors unable to debate w/o name calling!
Perhaps we need to try harder to figure out a way to have an adult discussion among ourselves apart from the kind that we wouldn't tolerate in a class of 1Ls. Hence the initial notice, above.
rs
Curtis, Michael K. wrote:
> 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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> 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.
>>
>>
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
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> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
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