Violating "Liberty"

Thu Mar 25 20:25:53 PDT 2010

Eugene,

I'm curious about this statement: "... dramatically expanding federal control over a huge sector of the American economy, as part of a plan that is clearly intended as just the first step in a broader agenda of control, poses serious threats to liberty are eminently legitimate arguments."

Here are my concerns. What does "liberty" mean here? It seems to me that to frame the issue this way requires one to already have accepted an inflexive and ideological account of the matter. Consider the following:

1. Getting free care at an emergency room isn't "liberty" in the sense we mean it here. Free lunches aren't included.
2. Being encouraged to purchase with tax penalties a reasonable market price with consideration for ability to pay would seem to enhance "liberty" by many accounts of the idea.
3. If the overall affect of a private system structured by government's help has the effect of containing costs (big if), it might be the case that total social utility goes up. If the matter is, in fact, utilitarian, is it still a "threat to liberty" in the sense you mean?

Here's the big point. Isn't what you really mean is this: it achieves its social benefits by taking money from rich people and insurance companies? I'm curious as to what liberty is being infringed upon by most Americans? The right not to purchase health insurance? Imagine someone took this idea the Court under the liberty-provisions of our government, and not under the power-conferring provisions. What would either conservative dogma or the glory of Herculean rights logic say about such a claim. "My constitution liberty is offended because I have a God-given right not buy health insurance." If one were to grant this premise, what others might be granted? Compare:

"I have a right to gamble"
"I have a right not to clean up after myself"
 "I have a right not to plan for the future"
"I have a right not to be forced to be careful"
"I have a right not to buy auto insurance"
"I have a right not to be forced to contribute to my retirement"

It seems to me that the right being claimed is the right not to be taxed higher if I don't buy something socially vital. What body of credible philosophy really could grant such a claim?

Don't you think it is disingenuous to tell others this issue is about "liberty?" If it really were, you would be asking to invalidate car-insurance laws, forced-retirement contributions -- all sorts of things. 

Here's what you really mean:
1. rich people are paying for it, so they have less "liberty" 
2. insurance companies don't have quite the same racket, so they have less "liberty"

And so the issue here is that a dogma exists in society that scares everyone with lies. It tells people "liberty" is threatened and that the True Constitution is being violated. What this means is this: the rich people and powerful entities who run the GOP go around scaring everyone with a dogma so that the wealthy can maximize their power, leisure and freedom.    

Where am I wrong?

Regards and thanks.

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 

----- Original Message ----
From: Sean Wilson <whoooo26505 at yahoo.com>
To: conlawprof at lists.ucla.edu
Sent: Thu, March 25, 2010 7:43:23 PM
Subject: Re: Rioting in the Streets

... look, let's do this. I think it is important.

The basic reason why a nut job becomes a "nut job" is probably because of two fundamental things: (1) his or her own poor cognitive abilities; and (2) the "pictures" of how the world works that become formed in the head.

With respect to (2), ask yourself what is one of the most important confusions that strident tea-party people, militia groups, and anti-Obama zanies all have in common, and is the one thing that could lead them on the path to uncontrolled fanaticism and even violence. Although those on the left might say something like "race hate" or the like, the answer seems to me something different. It is this unfounded, blind and completely ignorant proposition that "the true constitution" is being violated by modernity, which leads to the dangerous picture that the current era is illegitimate by the true and real foundations of the legal order. It's one thing for a natural law theory to assert this -- which is the same as an abstract belief system asserting it (cf for the left, not squaring with "utopia") -- but it is entirely another to be asserted as a concrete fact about the existing legal system. 

Imagine what it must be like inside the minds of some of these people. Imagine living in a world where you believed in law and order as a fact (not as what it should become), and believed that existing behavior was a corruption of it. It would be like people in Iran thinking the regime is illegitimate because it cheated the election. It would be the equivalent of one in office knowingly taking bribes or something. This has to cause way too much "heat" in the brain. This picture alone surely does a great percentage of the damage that leads one down the path to fanaticism of one sort or another. 

Why am I saying this? For one reason. To some extent, conservative law professors are to blame here. But I don't mean this because of what they espouse. I mean it because all that is needed to fix this aspect of the problem is to instill one little thought into their students, the public and those political alliances they are involved in. And that thought is this: the view is only a THEORY of constitutionalism. It's only a THEORY of law. If every single tea-party person could come to understand that they are only defending a THEORY of constitution, the matter would be regarded by their very own cognition as being a kind of utopia-vision of reality, not a conspiracy theory. It would be the same sort of stuff that the left gasses up on, only in another direction. In other words, the world wouldn't be seen as criminal or violative of an existing legal order; it would only seem violative of what a theory of the order should be. That little step alone
would do much, much good in the cognition of ideas by those too drunken with right wing ideology.

And I think conservative law professors have a duty in this time and age to clarify this sort of message. "The Lost Constitution" is only a right wing utopia. It isn't evidence of a crime or of bribes or of cheating or of unlawfulness. In many ways, "The Lost Constitution" is simply the Great Society of the right. And if these fanatics out there on the a.m. radio dial and at these protests can just come to learn that they are living only for a set of ideals (a philosophy) rather than self-policing "the true law," I bet a great deal of the slippage that causes one to go into fanaticism would be alleviated.

Regards and thanks    

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: Daniel Hoffman <guayiya at bellsouth.net>
To: EugeneVolokh <VOLOKH at law.ucla.edu>; Janet Alexander <jca at stanford.edu>; Theodore Ruger <truger at law.upenn.edu>; Paul Horwitz <phorwitz at hotmail.com>; "matthewhpolsci at aol.com" <matthewhpolsci at aol.com>; "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>; David Wagner <daviwag at regent.edu>
Sent: Thu, March 25, 2010 6:47:18 PM
Subject: RE: Rioting in the Streets

how do these comments affect constitutional analysis?
if we conclude that there are dangerous crazies on both sides or only on one side , does that affect what we deem to be imminent incitement to crime?  does it strengthen the case for a compelling interest argument? does it affect whether new restraints would be viewpoint discrimination?
and what are we listmembers doing to discourage violent actions on either side?

thanks, Daniel Hoffman

--- On Thu, 3/25/10, David Wagner <daviwag at regent.edu> wrote:

>From: David Wagner <daviwag at regent.edu>
>Subject: RE: Rioting in the Streets
>To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>, "Janet Alexander" <jca at stanford.edu>, "Theodore Ruger" <truger at law.upenn.edu>, "Paul Horwitz" <phorwitz at hotmail.com>, "matthewhpolsci at aol.com" <matthewhpolsci at aol.com>, "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
>Date: Thursday, March 25, 2010, 5:58 PM
>
>
>The incidents mentioned by Justice Thomas in his Citizens United partial concurrence merit a mention in this context. http://www.law.cornell.edu/supct/html/08-205.ZX1.html
> 
>David M. Wagner 
>  
>  
>From:conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>Sent: Thursday, March 25, 2010 4:58 PM
>To: Janet Alexander; Theodore Ruger; Paul Horwitz; matthewhpolsci at aol.com; conlawprof at lists.ucla.edu
>Subject: RE: Rioting in the Streets
>  
>               Likewise, leading Republican Congressman Eric Cantor reports that a shot was fired through the window of his campaign office, http://www.cbsnews.com/8301-503544_162-20001168-503544.html?tag=latest .  And of course, speaking of riots, there was the apparent attack on protester Kenneth Gladney by several people wearing Service Employee International Union T-shirts and shouting racial slurs (see, e.g., Investor’s Business Daily, Dec. 2, 2009, at A10).  So I agree that there is unfortunately some political violence and vandalism out there, perpetrated by some who seem to be on the left, some on the right, and I would guess some who are on a planet all their own. 
>  
>               Eugene 
>  
>From:conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Janet Alexander
>Sent: Thursday, March 25, 2010 12:12 PM
>To: Theodore Ruger; Paul Horwitz; matthewhpolsci at aol.com; conlawprof at lists.ucla.edu
>Subject: RE: Rioting in the Streets
>  
>Perhaps not "rioting" exactly, but vandalism and death threats.  Note statement near end of story that a blogger who claims credit for inspiring the rock-throwing "is headlining an open carry gun rally in Northern Virginia next month."
>
>
>
>
>Lawmakers concerned as health-care overhaul foes resort to violence
>
>By Philip Rucker
>Washington Post Staff Writer
>Thursday, March 25, 2010; A01 
>
>The pitched battle over health care has unleashed a rash of vandalism and attacks directed at politicians, with at least 10 House Democrats reporting death threats or incidents of harassment or vandalism at their district offices over the past week. 
>
>More than 100 House Democrats met behind closed doors Wednesday afternoon with representatives of the FBI and the U.S. Capitol Police. The lawmakers voiced what one senior aide who was present described as "serious concern" about their security in Washington and in their home districts when they return this weekend for the spring recess. 
>
>Usually only the congressional leadership has regular personal protection from the Capitol Police. But at least 10 lawmakers have been offered increased protection by law enforcement agencies, said House Majority Leader Steny H. Hoyer (D-Md.). 
>
>Asked whether members are endangered, Hoyer said: "Yes. [There are] very serious incidents that have occurred." 
>
>Senate Sergeant-at-Arms Terrance Gainer e-mailed senators and staffers Wednesday telling them to "remain vigilant." Gainer, a former Capitol Police chief, said in an interview that the warning was meant to "assuage people's fears." 
>
>But House Democrats say they are unnerved. 
>
>"Our democracy is about participation," Hoyer said. "Our democracy is about differing and debate and animated debate and passionate debate. But it is not about violence." 
>
>The vandalism began last weekend, when the House debated the health bill for final passage. In Wichita, someone broke the window of a county Democratic Party headquarters with a brick that had "No to Obama" and "No ObamyCare" written on it. Lyndsey Stauble, executive director of the Sedgwick County Democratic Party, said she went to work Saturday morning to clean up the shattered glass around her desk. 
>
>"It was surprising and alarming to know that people, when they have so many opportunities for expression in this country, that somebody would resort to a brick," Stauble said. 
>
>Over the next 24 hours, thrown bricks shattered the glass doors and windows of party headquarters from Rochester, N.Y., to Cincinnati. A propane gas line at the Charlottesville home of Rep. Tom Perriello's brother was severed Tuesday after a self-identified "tea party" activist posted what he believed to be the Virginia Democrat's address on a Web site and urged opponents to "drop by" to convey their opposition to his yes vote on the health bill. 
>
>A brick was thrown through the Niagara Falls district office of Rep. Louise M. Slaughter (D-N.Y.), who also received a threatening voice-mail message referring to sniper attacks. The front door to the Tucson district office of Rep. Gabrielle Giffords (D-Ariz.) was shattered. And Rep. Bart Stupak (D-Mich.), whose last-minute negotiations to bar federal funding of abortion helped secure the bill's passage, received a fax with a drawing of a noose and an anonymous voice mail saying: "You're dead. We know where you live. We'll get you." 
>
>In Washington on Wednesday, the attacks were roundly condemned, with some congressional leaders wondering whether the long fight over health care had unleashed an ugly dimension to the modern political discourse. 
>
>"If we fail to learn the lessons of our history, we are bound to repeat them," said House Majority Whip James E. Clyburn (D-S.C.). "I think all of us learned some great lessons from the '60s and '70s, and there are some lessons that none of us want to repeat, but one thing we know, as Steny Hoyer said, 'Silence is consent.' " 
>
>House Minority Leader John A. Boehner (R-Ohio) called the incidents unacceptable. 
>
>"I know many Americans are angry over this health-care bill, and that Washington Democrats just aren't listening," Boehner told Fox News Channel. "But, as I've said, violence and threats are unacceptable. That's not the American way. We need to take that anger and channel it into positive change. Call your congressman, go out and register people to vote, go volunteer on a political campaign, make your voice heard -- but let's do it the right way." 
>
>Some Democrats, sensing a political opportunity, suggested that Republicans were fanning the anger with their fiery comments in recent days. Several GOP lawmakers stood on the speaker's balcony at the Capitol overlooking a tea party protest last weekend holding up signs that read "Kill the Bill." Below them, protesters were yelling "No! No! No!" and, referring to the House speaker, "Nancy, you will burn in hell for this!" 
>
>One of the more threatening incidents involved Perriello, whose older brother, Bo, came home Tuesday and smelled gas in the house. He discovered that a line to a propane tank on a gas grill in his yard had been cut. A threatening letter was also sent to the home that day. Federal and local authorities were investigating the incident. 
>
>"While it is too early to say anything definitive regarding political motivations behind this act, it's never too early for political leaders to condemn threats of violence, particularly as threats to other members of Congress and their children escalate,'' Perriello, a freshman who faces a tough reelection fight, said in a statement. "And so I ask every member of House and Senate leadership to state unequivocally tonight that it is never OK to harm or threaten elected officials and their families with anything more than political retribution. Here in America, we settle our political differences at the ballot box." 
>
>Virginia Gov. Robert F. McDonnell and Attorney General Ken Cuccinelli II, both Republicans, condemned the vandalism and threats. Cuccinelli, who has become a conservative folk hero for filing suit over the health-care law, said that the severing of the gas line was "absolutely, totally unacceptable" and that posting Perriello's address online was "way over the line." 
>
>Some of the vandalism appears to have been instigated by an Alabama blogger, Mike Vanderboegh, who encouraged his readers to throw bricks at the windows of Democratic headquarters across the country. Vanderboegh, a former leader of the Alabama Constitutional Militia who is headlining an open-carry gun rally in Northern Virginia next month, issued a call to the modern "Sons of Liberty" on his libertarian political blog to break windows nationwide to display opposition to health-care reform. 
>
>A vandal threw a brick into the glass doors at the Monroe County Democratic Committee's headquarters in Rochester overnight Saturday, attaching a note that quoted Barry Goldwater: "Extremism in defense of liberty is no vice." 
>
>Vanderboegh did not respond to questions Wednesday from The Washington Post, but he took credit for the incident in an interview earlier this week with the Rochester Democrat and Chronicle. "I guess that guy's one of ours," he told the newspaper. "Glad to know people read my blog." 
>
>Staff writers Ann Gerhart, Paul Kane, Anita Kumar and Rosalind S. Helderman and research editor Alice Crites contributed to this report. 
>
>-----Inline Attachment Follows-----
>
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Please note that messages sent to this large list cannot be viewed as 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.