Harvard Law School’s Austin Hall as photographed from the Cambridge campus. (Photo courtesy of Wikipedia.org)
CAMBRIDGE — Liberals have won the culture wars, and should start taking advantage of their victory, Harvard Law School Professor Mark Tushnet wrote in a recent blog entry that has drawn much attention for suggesting conservatives should be treated like post-war Germans and Japanese.
Tushnet, who teaches constitutional and civil rights law, argues on the 13-year-old Balkinization blog that with the U.S. Supreme Court no longer dominated by conservative justices, it’s time for liberal lawyers to ditch their “defensive-crouch constitutionalism.”
“The culture wars are over; they lost, we won,” he wrote, referring to conservatives as “they” and including himself among the liberals. “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.”
As a result, he wrote, the victors need to make some decisions about their conservative foes.
“For liberals, the question now is how to deal with the losers in the culture wars,” Tushnet wrote. “That’s mostly a question of tactics.”
“Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown,” he said, referring to the Supreme Court’s 1954 Brown v. Board of Education ruling that outlawed racial segregation. Tushnet added parenthetically: “And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”
The comment ignited an outcry in social media and on conservative-leaning websites:
@Harvard_Law // I do not appreciate ONE BIT your professor Mark Tushnet wanting me & fellow Christians treated as Nazis. #Liberalism
The Breitbart.com news site brandished a headline that read “Harvard prof urges liberals to treat evangelical Christians like Nazis” and described Tushnet as a member of “the old guard of the 1960s liberal elites.”
In his post, Tushnet asserted that liberals should be gathering lists of cases to be “overruled at the first opportunity on the ground that they were wrong the day they were decided.” He said his list includes the 1978 Bakke decision that invalidated the use of racial quotas in affirmative action policies and the 1976 Buckley v. Valeo ruling that effectively made political spending a form of constitutionally protected speech. He also recommends liberals actively and aggressively exploit “the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.”
When it comes to conservatives, he said, “my own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers.”
But responding to Tushnet’s assertions about how the battles began and have been fought, Ryan Anderson, a Heritage Foundation research fellow, said liberals were the aggressors on social issues. In a commentary posted by the Daily Signal, Anderson said that conservatives have been on the defensive from the beginning.
“Liberals aggressively sought in the courts an unlimited abortion license, a redefinition of marriage, and now for transgender bathroom policies throughout the nation,” Anderson wrote. “Liberals haven’t been bashful to use the courts to reshape social policy when they couldn’t win at the polls.”
He points out that protecting the minority, or Tushnet’s “losers,” is part of pluralism and tolerance – something that goes unmentioned in Tushnet’s post.
“When your neighbors are not in fact Nazis, you should favor public policies that help achieve civil peace amid reasonable disagreement,” Anderson said. “You should seek to protect pluralism and the rights of all Americans—including the ‘losers.’”
Harvard Law School’s Austin Hall as photographed from the Cambridge campus. (Photo courtesy of Wikipedia.org) 
