The statement about fear is by Franklin Delano Roosevelt, elected president in 1932 as the nation was diving to the bottom of the economic barrel, with millions of heads of family, men, then, thrown out of work. Soup kitchens and apple-sellers became the symbols of the Great Depression. In his Inaugural Address in 1933, FDR addressed the low morale and spirit of depression, as well as the economic fact of depression, coming out with the ringing statement that captions this item.
Fear drives our law, as well as our economy. Dealing with it takes a special skill. Soldiers experience fear. Trained leaders and trained troops exist not only to organize, but to combat the fear that immobilizes civilians, and makes trained soldiers so much better in war. Civilians run and hide, while soldiers remain and fight, combating panic as well as enemy soldiers.
What do civilians do when frightened? They have their legislators pass feel-good legislation designed to outlaw the boogie-man that's frightening them. This is how Japanese-Americans on the West Coast found themselves imprisoned without fault after Pearl Harbor. People who weren't Japanese-American were afraid of strangers, so off they went, not having been allowed to integrate in any real sense into the community of "we" as opposed to "therm."
One of the Conlawprofs wrote that he was concerned with the admission of foreigners into this country who had foreign ideas. They might overcome the nation with such ideas, such as those espoused by Muslim fundamentalists, as the newspaper phrase calls them. The professors idea was that he opposed admitting into this country people who might someday be his "co-rulers."
My own view in opposition was that we are said, by no less than Justice Oliver Wendell Holmes, Jr., to have a marketplace of ideas in this country and that the test of an idea is its ability to get itself accepted in the marketplace, which is notoriously unfriendly to bad ideas, as well as some good ideas, about which we can argue all day.
Hence the following exchange based on Prof. P's response, who also wrote in opposition:
Regarding the "fear of the other" mentioned by Prof. P, and her thought that one of the worst failings of our Constitution is its lack of positive rights (unlike the European Union's constitution), attention should be called to Korematsu, which upheld the detentions on the ground, essentially, that the government had a compelling governmental interest.
One sees this phrase "compelling governmental interest" in any number of individual vs. government fundamental rights cases.
Any idea what it means?
I think that "compelling governmental interest" means "fear" of something, whether it is of other people, other ideas, or anything else that makes ordinary people, and their governmental representatives, judges, etc, sufficiently afraid as to override constitutional guarantees. This is paranoia, defined as excess fear, in action.
Result?
A constitution capable of being thrown out the window as soon as the Trade Center falls, exactly the time when it is needed most.
Al Qaeda did a better job on 9-11 than it imagined it could have, I suspect, dropping not only the twin towers but the Constitution itself.
Talk about the terrorists winning.
rs
sfls
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Malla P. wrote:
I, for one, find the absence of positive rights to be one of the worst failings of the USA constitution and hope more of those horrible foreigners come here and help me weave them into the modern view of the Constitution.
While I understand fear of the other, I join the many list members who point out the negative consequences of earlier American xenophobia.
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If you've read this far, perhaps you won't mind my saying that the definition of "compelling governmental interest," which I offer as being none other than fear itself, is one of the best insights I've come up with since I began teaching constitutional law in 2002.
I've never seen anyone define it before.
The Court uses the phrase as a club to end all arguments.
Call the government's position compelling and you can throw Americans into prison without even a trial. Korematsu. It's still on the books, a loaded gun waiting to be picked up.
I think Justice Robert Jackson may have said that in his dissent.
I'll have to check.
But not right now.
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Prof. P. responded:
Right on!!! (too enthusiastic for list)
Warmly, Malla
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Thanks so much, Malla.