Harvard Law professor Mark Tushnet can be kind and gracious. Distinctly a man of the Left, he has, for example, provided an encouraging blurb recommending my own latest, distinctly conservative book, written with the late, distinctly conservative George Carey. He even agreed to serve on a panel discussing the book at an upcoming political science convention. I take this as a compliment, however critical his participation ends up being, because he is a man who says what he thinks.
Professor Tushnet did all conservatives a great favor recently in a posting at the Balkinization blog. The post makes crystal clear just how much contempt the Left has for conservatives, American culture, and any conception of law as a set of norms with any settled meaning. Looking forward to another Democratic administration, Tushnet essentially declares victory in the culture wars—which he claims were started by conservatives when they dared to use the phrase to describe the Left’s persistent, programmatic assault on traditional American norms and institutions. He now urges his tenured radical colleagues and their legal activist confreres to begin mopping-up exercises. It is a battle plan fit for a conquering army in a total war, complete with orders to take no prisoners and to build “from the ground up” new legal institutions and doctrines.
The post almost speaks for itself in its call for (anti-) legal revolution. Tushnet promotes ends-based legal policies aimed at stamping out any remaining resistance to the transformation of America into a unitary social democratic state in which the federal government doles out goods and life-chances according to an elite-determined schedule of oppression and grievance. Nevertheless, it is useful to parse some of the post’s language and argumentation.
Principally, for any who retain illusions about the possibility of some end point to the attack on the family, it is worth noting Tushnet’s view of the culture war. Note in particular that the “they” in this paragraph refers to conservatives in particular and, in general, any who have opposed even the most extreme impositions of the last several decades:
The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars … And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central—seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.) For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who—remember—defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.
It is worth considering this paragraph as a whole for its militaristic rhetoric, its demonization of an enemy (conservatives and mainstream Americans) likened to Nazis and Japanese imperialists, and its loud call for root-and-branch replacement of traditional institutions, beliefs, and practices. Indeed, Tushnet goes farther than General MacArthur, who let the Japanese keep their emperor because he recognized that people must see any new government as a legitimate outgrowth with ties to the old. The tenured radicals have no intention of “being nice” to conservatives—and even admits that any previous compromises were purely tactical in nature. As to previous conflicts, the very fact that there was opposition to the LGBT agenda in any of its particulars for Tushnet is proof of the moral illegitimacy of our entire way of life and of our need to be forced to conform to a radically new ethos and a radically new set of constitutional doctrines and structures. No exceptions, no religious exemptions, no quarter or admission that constitutional government entails adherence to precedent, let alone that justice entails respect for longstanding expectations; only a determination to make the racist, sexist, homophobic, class-bound, ignorant, and selfish enemy come to heel and accept a new order.
Also of interest is Tushnet’s characterization of the culture war as something that began generations ago. Indeed, his post begins with a lament over “defensive-crouch” constitutionalism. By this he means fear among law students and teachers that “aggressively liberal positions” might be struck down in the courts or even precipitate backlash. Tushnet defines neither liberalism nor “aggressively liberal positions,” save to castigate conservatives for their opposition to the march of progress. But those who call things by their proper names rather than seeing language itself as just another front in an unending battle for power might be better served by terms like “radicalism” and “revolutionary.” And it is hard to see any crouching in the contempt for legal process involved in disparate impact analysis, substantive due process (including as used in the abortion revolution), or for that matter the onslaught of regulatory and economic decisions undermining property rights from the 1930s until the short-lived, fragmentary retrenchment begun in the late 1980s.
Ignored in Tushnet’s demonization of his opponents as scorched earth troglodytes opposed to all forms of justice is any concern over the good that once served as the grounding for our constitutional structure: the rule of law. Then again, such is to be expected from a professor of law who declares “doctrine is a way to empower our allies and weaken theirs.” And Tushnett goes further. Now that he believes he can count on a ruling majority among federal judges and, soon, the United States Supreme Court, he recommends what he calls “A jurisprudence of ‘wrong the day it was decided.’” This jurisprudence—better termed a judicial strategy—consists of making a list of disfavored precedents and fighting to have them treated as nullities. Utterly policy-based, these determinations (for example, to overturn the Bakke decision because it rejected as unconstitutional the most overt forms of racial quotas) are to guide our tenured radicals in their drive to reorder American public and private life. But they will not be the only tools. For example, “liberals” also should “Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.” Law is nothing more than tactics, on this view, in a war over “liberal” goals, and this means that—purely as a matter of pragmatism—some retrograde decisions must be minimized rather than overturned, for now.
The legal endgame should be breathtaking in its audacity—though, alas, the audacity has been around too long to engender surprise, or even opposition, in our corrupted legal culture. As Tushnet puts it, “What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important—more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.” Taking as models the most radical of Supreme Court justices (Brennan and Marshall) who showed open contempt for the Constitution and the common law, Tushnet and his allies would stop “massaging” decisions of the likes of Anthony Kennedy, for whom Tushnett offers a four letter word. Instead, legal doctrine would be simply made up. Texts and precedents, on this view, are mere tools and weapons. They should be used, ignored, or destroyed as needed to achieve radical ends presumed to be in some sense valid—or at least more valid than the hated remnants of a resented tradition. I leave to the reader consideration of the relative costs and benefits of our constitutional tradition and its radical successors.
Lawyers on the radical Left always have practiced the most cynical form of Leftism. By this I do not mean that Tushnet is being dishonest, for he seems genuinely to believe that law itself is nothing more than a tool of power. Thus, for one with his ideological goals, law should be exploited for the “cause” of using the federal government to rearrange society, culture, and people’s ways of thinking. Seeing in the offing a third radical presidency, Tushnet sees no reason any longer to use softening language to obscure much of his program of action, or to bother hiding his feelings of moral superiority over those who cling to family, faith, and freedom.
There is a caveat, however: “all bets are off if Donald Trump becomes President.” I can think of no better reason for conservatives to set aside their concerns over constitutional forms, limited government, and the rule of law and vote for Trump than the prospect of unleashing the full fury of the self-appointed Social Justice Warriors who already have turned our universities into bastions of smug ignorance, our cities into bankrupt battlegrounds filled with crime and squalor, and our bathrooms into the latest site of virtue-signaling, self-absorbed whining, and ignorance of the needs of the children whose well-being we all claim to value.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.