Rioting in the Streets

Mon Mar 22 17:15:46 PDT 2010

Matthew, here is why:

The American system isn't like European systems. It's much harder to govern. If the Republicans gain control, they won't be able to do much without gaining control of the executive branch. And so they probably will only gain partial control, if at all. And so if the thing gets dislodged by the Court, it would take a massive political tide to capture American government again to the point it is currently captured. It therefore would be the equivalent in the ritual of sport of "taking points off the board," or changing the winner of a game the next day.  It would swipe away the window of opportunity that history and the democratic ritual lawfully afforded Democrats in the way Americans configure their political fights.

Now, we allow the Court to molest the game here and there -- the Court is itself part of the game -- but only for legitimate reasons. Once the commissioner or referees looked bribed or tilted toward particular winners, the intervention becomes more like cheating. 

One of the things that is both quite ironic and alarming about all of this is what pragmatism and "critical" approaches about law have done to this discussion. I mean, you have these people all over academia telling everyone "its all politics." Or, you have these pragmatists saying, "if the people don't support it, invalidating is good." What this current example shows is why these ideas are both shallow and hegemonically dangerous. As they become more and more propagated, they become cancerous to the judiciary's role in the system  The American system of government has never been about consensus or majorities. One could understand it better appealing to Roman psychology than to European ideals of community. American politics is like the ritual of sport. When one defeats another in the ritual, they are entitled to their spoils, save that of legitimate "fouls" called by the Court. And to say that the concept of "foul" is a myth, or that it should
 serve majoritarian attitudes, is to do nothing but injure the entire Roman spectical.   

I think that one of the great lessons coming out of the New Deal era is the idea that large-scale taxing/spending and regulatory programs that involve ideological disputes over how to play capitalism or distribute wealth are properly left to American mud wrestling. And that the Court is not to be an instrument for winners and losers in the Reagan-versus-Great Society policy debate. Taxing, spending and large-scale regulatory matters are the quintessential kinds of disputes that are resolved by the political rhetoric and national contests that regularly occur. 

In many ways, what we are seeing here is whether the Obama ascendancy truly represents the repudiation of Reagan. That's what all of this is about. The world of the teabaggers is greatly threatened. The Court needs more than ever to be pious and Dworkinian during this period in American history, and not to make the horrendous mistakes of the past.                

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html 

________________________________
From: "matthewhpolsci at aol.com" <matthewhpolsci at aol.com>
To: CROWLEY at uidaho.edu; CONLAWPROF at lists.ucla.edu
Sent: Mon, March 22, 2010 7:29:08 PM
Subject: Re: Rioting in the Streets

I raise not a constitutional point, on which others have more authority, but two political and public opinion points.

(1)  Is there some colleague on the list who can discuss how the British dealt with National Health Insurance politically.  I have the impression that the Tories criticized the legislation most severely.  They attempted to make some changes when they came back into office.  But, on the whole,  the system settled down.  By the time Thatcher became Prime Minister, National Health (though with many faults and much criticism) was much too generally accepted to be trifled with. 

Should we not expect something of the sort with this new legislation, even with the Republican majorities that are sure to come to the House and/or Senate at one time or another, and even the Republican President who will come to office similarly.

(2) If the Supreme Court should do something that eviscerates the new legislation (and we should keep in mind Sisk's point about how issues might come to the Court), President and Congress have ample means to respond, if there is sufficient public support.. So why are we talking about "rioting in the streets?"  

Matthew Holden, Jr.
University of Illinois at Springfield

-----Original Message-----
From: Crowley, Donald <CROWLEY at uidaho.edu>
To: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
Sent: Mon, Mar 22, 2010 4:32 pm
Subject: FW: Rioting in the Streets

I don't find the "rioting in the streets" approach to be very useful but
the legislation probably isn't as unpopular as David implies.  In a poll
last week that showed 59% against the legislation 13% of those opposed
were liberals who wanted a bill with a public option in it.  Other polls
that just ask about specific components of the bill find widespread
support for large parts of the bill.  Repeal in the near future is
pretty far fetched even in the unlikely case that Republicans could win
both houses Obama could still veto it.  

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
davidebernstein at aol.com
Sent: Monday, March 22, 2010 2:12 PM
To: SLevinson at law.utexas.edu; iclupu at law.gwu.edu; nlund at gmu.edu;
CONLAWPROF at lists.ucla.edu
Subject: Rioting in the Streets

I find it extremely unlikely that there would be rioting in the streets 
over the invalidation of a law that had the support of only 43% of the 
public, and whose opponents within the public were a lot more adamant 
than its proponents.  More likely, there would be celebrations in the 
streets.  Sandy is a student of the politics of the Constitution, so he 
is surely aware that the unpopularity of the law, combined with its 
passage by a bare majority, makes it a lot more likely that the Court 
will invalidate it than if it was wildly popular and passed by a large 
bipartisan majority.  If the GOP takes the House in November, 
invalidation becomes even more likely, though the House Republicans 
could "kill the bill" themselves by steadfastly refusing to appropriate 
any money to implement it.

>
>   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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