I'd like to go a bit deeper into the explanation you offered in the first round for why more conservatives have not opposed these usurpations.
You indicated that you thought that what differentiated you from the majority of conservatives was that most of them had not "struggled with the lofty ideas and ideals of great philosophers and the Founding Fathers sufficiently to appreciate that the history of liberty is the history of procedural regularity and the rule of law." It appears to me that the "majority" involved here is more like a massively overwhelming majority. Which leads me to want to conduct with you this thought experiment:
Imagine that you and I were talking in 2000, and I asked you to make a list of people like you, i.e. 1) conservative, and 2) understanding of the importance of the Constitution and the rule of law. Would I be correct that you'd have been able to make up a reasonably long list, that you'd be far from the only such person you could think of.
Now as you look at that list, how many of those people have spoken out as you have, opposing these usurpations and expressing alarm at where they may lead? If that list had more than a couple of names on it, and if your explanation of why we've not heard more such opposition from the right hits the nail on the head, then there should be plenty of other voices like yours audible in our public discourse. But if that's so, I've not heard them.
That leads to one final and, as you'll see, somewhat related question.
You mentioned approvingly Bush's two recent Supreme Court appointments-Roberts and Alito. Now, some people have been concerned that either or both of these men might be people who will use their position on the bench to abet and ratify the usurpations that concern us. From what I've read, I can see some basis for these concerns. Do you have any such concerns, i.e. any fear that these new justices will affirm the theories of unchecked presidential power that the Bush administration is employing in its assault on the Constitution?
Fein:
Schmookler:
You indicated that you thought that what differentiated you from the majority of conservatives was that most of them had not "struggled with the lofty ideas and ideals of great philosophers and the Founding Fathers sufficiently to appreciate that the history of liberty is the history of procedural regularity and the rule of law." It appears to me that the "majority" involved here is more like a massively overwhelming majority. Which leads me to want to conduct with you this thought experiment:
Imagine that you and I were talking in 2000, and I asked you to make a list of people like you, i.e. 1) conservative, and 2) understanding of the importance of the Constitution and the rule of law. Would I be correct that you'd have been able to make up a reasonably long list, that you'd be far from the only such person you could think of.
Now as you look at that list, how many of those people have spoken out as you have, opposing these usurpations and expressing alarm at where they may lead? If that list had more than a couple of names on it, and if your explanation of why we've not heard more such opposition from the right hits the nail on the head, then there should be plenty of other voices like yours audible in our public discourse. But if that's so, I've not heard them.
You mentioned approvingly Bush's two recent Supreme Court appointments-Roberts and Alito. Now, some people have been concerned that either or both of these men might be people who will use their position on the bench to abet and ratify the usurpations that concern us. From what I've read, I can see some basis for these concerns. Do you have any such concerns, i.e. any fear that these new justices will affirm the theories of unchecked presidential power that the Bush administration is employing in its assault on the Constitution?
Fein:
I have been more disappointed than surprised over the deafening silence of conservatives over Bush's scorn for the rule of law. My reading of human nature lowered my expectations of intellectual courage. Socrates, my childhood hero, or Sir Thomas More are the rare exceptions. In 2000, my list of vocal critics of Bush's lawlessness would have approximated 20. Only one has satisfied my expectations, but more with inaudible body language than with verbal shafts. To amplify on my earlier explanation, I believe the learned conservatives generally remain silent because their law and lobby practices require them to maintain access to the Bush administration, and access is power in Washington, D.C. Most people will sell their souls for a mess of pottage.
I do not think either Roberts of Alito will bow to Bush's legal outlandishness. Remember it was Scalia in Hamdi who dissented and insisted Bush could not detain illegal combatants because Congress had not suspended the writ of habeas corpus. Both Roberts and Alito were schooled in the Executive Branch under Reagan, but Robert Jackson was FDR's Attorney General who defended expansive war powers yet voted against his odious concentration camps of Japanese Americans in Korematsu and against Truman's seizure of a steel mill during the Korean War in Youngstown Sheet & Tube. We should soon know of their predilections in the pending Hamdan case.
Schmookler:
I am somewhat reassured by your expectations regarding Roberts and Alito and how they'll deal with the presidential lawlessness that concerns us both. You say that "We should soon know of their predilections in the pending Hamdan case. "
Two quick questions about that. First, to confirm your expectations -that they will not "bow to Bush's outlandishness"-what would Roberts and Alito have to declare in that case? Second, were you in agreement with how Roberts ruled in that Hamden/Guantanamo case from the appellate bench? (That was one of the bases on which some people - reasonably, it seemed to me-have had concerns that Roberts might be a willing accomplice of the Bush usurpations.)
Next, I'd like to return to that main thread in our conversation: the question of why a voice like yours -conservative and willing to speak out against "your" president's lawlessness-has been so rare. You write, "I believe the learned conservatives generally remain silent because their law and lobby practices require them to maintain access to the Bush administration, and access is power in Washington, D.C. Most people will sell their souls for a mess of pottage."
One very quick question: Do you think this willingness to sell one's soul is any more prevalent now than at other times in our history?
But to return to that issue of the rarity of principled objections...
I don't want to put you in an embarrassing position by calling attention once again to that apparent specialness that first led me to you, but surely you recognize that the explanation you offered in the first round has been pretty well disproved by your testimony in the round just completed. You had proposed that it was a kind of ignorance of the importance of the rule of law that led the majority to "succumb to partisanship over principle." But now it turns out that your conduct differentiates you not only from the ignorant, but also from your learned fellow conservatives.
I will not press you to go further in explaining why you haven't sold your soul like the rest, but if you're willing to venture further I would be interested. While it is true that your standing up for principle does not require you to give that "last full measure of devotion" -the moral courage required today is not at the Dietrich Bonhoeffer level-conduct like yours has nonetheless proved disturbingly rare. And so we are left needing to have an explanation either for the soul-selling of the others, or for the rare instance of integrity.(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
