Heaven was so close Mark Tushnet could feel the years rolling off him.Tushnet was a 70-year-old Harvard Law professor in 2016, but he evinced the youthful zeal of a Harvard undergraduate when he published a manifesto that May encouraging his fellow progressives to start imagining the possibilities of a reinvigorated progressive jurisprudence that would be ushered in by Hillary Clinton. Adverse precedents “overruled at the first opportunity.” Judicial nominees in the mold of Thurgood Marshall. Defeated social conservatives treated like the losers in World War II. The days of “looking over [your] shoulders” in fear of the conservative bogeyman are over, he exhorted. The time for “abandoning defensive crouch liberal constitutionalism,” as he titled his blog post, had come.
Treating your fellow Americans as conquered enemies, yes, obviously. In the present moment, with the left in such high dudgeon about 'overturning stare decisis,' it is amazing to see in print an admission that a top priority was to "overrule [disfavored precedents] at the first opportunity.' That's Heller, at least, as core a decision for the other side as Roe was for theirs.
All this in defense of a move to 'abandon... liberal constitutionalism.' If you are willing to abandon liberal constitutionalism from the left, what you mean is that you are abandoning constitutionalism.
These moves aim at pure power. They are antithetical to our tradition, and yet all I hear is talk of 'defending our democracy' and 'rule of law.'
7 comments:
I find it telling that 'our' keeps getting inserted before 'democracy'.
@ CB - good point. "Telling" is exactly the word.
@ Grim - this is why they are convinced this is what conservatives are up to. It's projection. Projection is an excellent metaphor, as it involves projecting your own movie on someone else's blank screen. It can be argued that the conservative screen is not entirely blank in this case, but the evidence for that is largely anecdote - random state reps in Missouri introducing nutcase legislation, a local fulminating pastor, a woman holding a sign at a rally. These are used for confirmation bias, but are evidence that they don't really know this group of people. Conservatives have not resorted to this arms race precisely because they do have great respect for constitutionality and following what the decisions are when the system has been operated properly, even when they believe the decisions are wrong.
Most liberals are nice enough people as well, just convinced they are righteous and that they therefore have to tolerate dirty politics and give power to smiling people who want to drink our blood. They are actually quite good at going back to being nice once their enemies are crushed.
Christopher B...very good point, indeed.
In the days of the Holy Roman Empire, there was a small group of men called the Prince-Electors. They, and only they, got to vote on who the next Emperor would be.
We have people in America today who believe that they should have a similar role.
"Most liberals are nice enough people as well, just convinced they are righteous and that they therefore have to tolerate dirty politics and give power to smiling people who want to drink our blood. They are actually quite good at going back to being nice once their enemies are crushed."
Unfortunately, I fall into the enemy camp, both by general leftist consent and now by official decree. So I won't be around for them to be "nice" to. Does not leave a lot of room for maneuver.
I am not the enemy of liberals or of the Left; they have chosen to make themselves my enemy.
Neither am I a liberal or a conservative constitutionalist. I am a constitutionalist--one who considers the text of our Constitution to mean what it says, and as the the supreme Law of the Land--and what Justice Clarence Thomas has termed the first and primary precedent--it must be followed as written unless and until We the People amend our document. That that might coincide with today's [x-]constitutionalist is mere happenstance.
Eric Hines
“ So I won't be around for them to be ‘nice’ to…”
Maybe he means like we treated Germany and Japan, and the plan is to spend a fortune rebuilding our economy and protecting us from danger while allowing us preferential trade deals that ultimately work to impoverish them while we benefit.
Maybe he means....
Can I interest you in some beachfront property north of Santa Fe--it's even in mountains--I might know about? [g]
Eric Hines
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