Every Idea is an Incitement
nebraskalawprof at yahoo.com
Fri Sep 2 06:54:01 PDT 2005
Thanks, Jim, for an excellent post. It really is easy to forget that real people are suffering in the midst of the issues we debate on this list.
Real people are suffering in New Orleans right now. They need material help and prayers.
Our troops are in harm's way in Iraq. They should not be used as political pawns by either side of the war issue.
Real people are affected when memorial speeches, crosses, and plaques are censored in the name of anti-establishment.
Real people are denied equal access to state universities when courses they take at academically-rigorous high schools are disqualified because their textbooks contain a religious viewpoint of science or history.
But I will also try not to forget that real people, like Michael Newdow, feel they are harmed by government-sponsored religious expressions in the public schools. As Mr. Newdow himself argued before the Court:"I am an atheist. I don't believe in God. And every morning my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong."
Perhaps we all need to think long and hard before we call each other dishonest, or mean-spirited, or irrational, or hostile, or fundamentalists, or unconcerned with the public good.
Cheers, Rick Duncan
JMHACLJ at aol.com wrote:
In a message dated 9/2/2005 8:39:27 A.M. Eastern Daylight Time, mgraber at gvpt.umd.edu writes:
I wonder whether in this time of disaster, several list members
whose contributions are consistently valuable may wonder whether a) they
inadvertently picked a fight with people who had civility reasons for
not fighting at this time or b)overreacted to an effort to raise
legitimate questions that was probably unncessarily provocative.
Candidly, the pique about my posting is a bit much. The most sublime moments in personal history, graduations, memorial services, ground breakings, etc., have been marred by individuals whose view of the EC compels them to tell Johnny that he can't mention the Bible in his valedictory address, telling Suzie that she can't remember aloud for her classmates that her now-dead friend drew great comfort and solace during her illness by resort to prayer, by insisting that some memorial plaques, ones reflecting a keenly felt nexus between crises and faith, are less equal than others.
If you are not one of the dunderheads who have taken a red pencil and scratched a line through the text of Johnny's or Suzie's remarks then I am not speaking about you, I am merely advising you that these real life instances occur. For those whose nestling into academia is complete, who do not practice in the real world at all, the antisepsis of their circumstance may overwhelm the ability to understand just how harshly their efforts to vindicate their perception of the requirements of the EC are felt by those whose words, works and memorials are desecrated by the efforts.
Hamfisted government actions, often taken out of fear of litigation, do not happen in a vacuum. They happen during the real lives of real people.
The lawsuit to remove the cross in Los Angeles is provocative. It is a memorial to lives lost; to sacrifices made. Where is the chastening of the provocateurs? For that matter, how many on this list have used the cross case as an illustrative fact pattern with students, or on this list, or in academic writings, without pausing to reflect on the fact that for a generation described as the greatest that memorial offers a permanent, appropriate and keenly felt commemoration.
"Unnecessary" provocation is a standard that seems inevitably to lead to subjective judgments and provide little effective guidance. In this regard, we could look at the recent list discussion on the conlaw list regarding the Iraqi constitution deadline.
In the run up to the deadline set for the proposition of an Iraqi constitution, as government ministers, citizens, police, and our soldiers, were constantly in harm's way, one of the conlaw list members, one whose contributions to that list undoubtedly fits many readers' view of "consistent value," provoked a discussion with serious political overtones, in essence even if not in purpose, maligning the administration here at home for the artificiality of the deadline, the failure to grasp that such a difficult goal would not be won by hamfisted efforts, etc.
I will not go back by date and see how many folks -- the good, the bad, the ugly, the innocent, the guilty -- died at the hands of the terroristic insurgency or police/military responses to it on each of the days that the discussion on the conlaw list went forward. I know that the number is significant. Did the ongoing slaughter silence the discussion? No. Was it provocative? Was it susceptible to the kind of reading that would lead to undermining support of the effort here at home? Ask those on the list who support the administration's and our Nation's efforts there. But, and this is the important question, should the question have been silenced? Should list members browbeat with personal epithets the parties who provoked a discussion that is continuing to this day on that list? I don't think so. Sure, I think the question was based on a misguided failure to appreciate the importance of the venture, but tell that provocateur to "shut up"? No. To seek to shame hi!
silence? No. Disagree with him? Vigorously, passionately, reasonably, fine. Silence him? No.
Jim "Getting that Chief Joseph Feeling Again" Henderson
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Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
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