Health Care Question

Nelson Lund nlund at
Mon Mar 22 15:09:20 PDT 2010

If Sandy hopes that a significant number of people will believe that the 
constitutional issues raised by this health care financing bill are so 
"transcendentally important" and so compelled by "one's basic moral 
suppositions" as to justify rioting in the street, I predict that he 
will be disappointed. I think that such a disappointing outcome would 
reflect a healthy disposition in the polity, but I don't think our 
disagreement on that point could be usefully debated on this list.

Rioting in the streets, of course, frequently results in people getting 
killed. Accordingly, I do hope that the polite tenor of this discussion 
will be kept in mind if anyone on the list ever expresses a hope for the 
assassination of abortionists.

Nelson Lund
George Mason

Sanford Levinson wrote:
> Nelson's question is a serious one, and I think that the serious 
> answer is that the propriety of rioting in the streets turns 
> ultimately on what one believes the consequences of that decision to 
> be.  The "legal merits" are not irrelevant, but, inevitably, any 
> decision would be radically split, and one could not seriously argue 
> that the constitutional question was "clear."  It would be just 
> another example of  five votes based on literally debatable views of 
> the Constitution.  And, of course, it does matter if one views the 
> issue as being "transcendentally important."    Why would anyone 
> seriously believe that positive law necessarily triumphs over one's 
> most basic moral suppositions?  The answer, of course, is that one 
> ultimately adopts Thomas Hobbes's view of the bleak universe we live 
> in and view order---and the ultimately arbitrary authority of the 
> sovereign---as determinative. 
> sandy
> *From:* conlawprof-bounces at 
> [mailto:conlawprof-bounces at] *On Behalf Of *Nelson Lund
> *Sent:* Monday, March 22, 2010 2:38 PM
> *To:* CONLAWPROFS professors
> *Subject:* Re: Health Care Question
> Presumably, then, rioting in the streets should also be an appropriate 
> response if the Court does /not/ do that? Or should one's view of the 
> propriety of rioting in the streets differ depending on whether one 
> agrees with the legal merits of the Court's decisions? Or on one's 
> views of the merits of the legislation at issue? Or one's views of 
> what is "transcendentally important"? Or on whether the decision was 
> made by Republican judges?
> Nelson Lund
> George Mason
> Sanford Levinson wrote:
> I confess I find it also a bit bizarre that the discussion proceeds as 
> if it is totally irrelevant that a 5-judge Republican majority  will 
> be asked to set aside, on the basis of remarkable controversial (and, 
> for many of us, entirely dubious) theories of the Constitution, the 
> most important piece of domestic legislation in almost fifty years.  I 
> think it would be a far more remarkable piece of interventionism than 
> even the Old Court in 1935-36 in terms of the invalidation of a truly 
> central (indeed, transcendentally important) piece of legislation.  
> Would there be rioting in the streets if the Court did that?  I 
> certainly hope so.
> sandy
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