Harvard law prof.: treat conservative Christians like Nazis

Harvard Law Professor Mark Tushnet is urging his fellow progressives to take a radical stance against all forms of conservatism following the death of Supreme Court Justice Antonin Scalia, with the goal of overturning Republican policies from the bench.

“Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided,” Tushnet wrote in a blog post Friday. “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.”

Tushnet then argues that the days of what he calls “defensive-crouch constitutionalism,” where every liberal position was asserted with angst, are over, and liberals are now entering a new reign. Thus, he concludes, every liberal ought to assert his victory over conservatives unrelentingly.

“The culture wars are over; they lost, we won,” he writes. “For liberals, the question now is how to deal with the losers in the culture wars…My own judgement 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 approach seemed to work reasonably well in Germany and Japan after 1945),” he continues, implicitly likening conservative Christians to practitioners of those notorious fascist philosophies.

In a separate post Monday, however, Tushnet defends himself against these allegations, saying “what a hard line is will vary with the circumstances” before mocking the religious liberty arguments used by Christians to qualify for exemptions from extending business to LGBT couples.

“In the context I was writing about, for example, ‘taking a hard line’ means opposing on both policy and constitutional grounds free-standing so-called ‘religious liberty’ laws,” he endeavors to explain. “It also means being pretty leery about some ‘compromises’ I’ve floated—most notably, agreement by Christian conservatives to support extending general nondiscrimination laws to cover the LGBT community in exchange for including ‘religious liberty’ exemptions.”

Tushnet concludes his original post by advising his liberal legal peers (after a “trigger/crudeness alert”) to “fuck Anthony Kennedy” for assuming a swing vote role in the Supreme Court, arguing that they no longer need to cajole Kennedy’s vote by conceding points to conservatives.

“I don’t mean that liberals should treat him with disrespect,” he clarifies. “But defensive-crouch liberalism meant not only trying to figure out arguments that would get Kennedy’s apparently crucial vote (not so crucial anymore), but also trying to milk his opinions—and more generally, obviously conservative opinions—for doctrines that might be awkwardly pressed into the service of liberal goals.”

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