Harvard law professor blames conservatives for 'culture wars,' says liberals have won

A professor of law at the Harvard University says that conservatives are to blame for "culture wars," but not everyone agrees. 

In an article titled "Abandoning Defensive Crouch Liberal Constitutionalism," Harvard law professor Mark Tushnet has taken a jab at conservatives, saying, "Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope."

He says that the result is defensive-crouch constitutionalism, with liberals afraid to assert their position because of possible retaliation from conservatives. Liberals should abandon defensive crouch liberalism, Tushnet says, meaning they ought to be listing down cases that should be "overruled at the first opportunity on the ground that they were wrong the day they were decided."

Overruling key cases is what matters, he says, and thinking about what the doctrine should look like is "more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open." He said that fear of reversal by the courts made liberals afraid of being aggressive, but that is no longer the case, and the "ambiguities and loopholes in unfavorable precedents that aren't worth overruling" should be exploited aggressively.

"The culture wars are over; they lost, we won," he wrote. "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."

Moreover, he said, "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.)"

However, Ryan T. Anderson, Ph.D, Public Discourse founder/editor and the William E. Simon Senior Research Fellow in American Principles and Public Policy at The Heritage Foundation, in an article on Daily Signal, asks when liberals have ever been defensive. He says that it's the conversatives who have been in that position and not the other way around.

"Liberals aggressively sought in the courts an unlimited abortion license, a redefinition of marriage, and now for transgender bathroom policies throughout the nation," he wrote. "Liberals haven't been bashful to use the courts to reshape social policy when they couldn't win at the polls."

Anderson also says that Tushnet and other liberal elite "want the government to treat conservative Christians worse than racists—like Nazis."

He is urging people to make sure that Tushnet doesn't succeed as the latter "embodies a particularly vicious form of illiberal liberalism." He said that what real liberalism requires is the protection of what the Harvard professor calls "losers" -- the minority -- following the changes, as it is "an important feature of America's tradition of tolerance in the midst of pluralism." 

Theologian Thomas D. Williams, Ph.D., meanwhile, wrote on Breitbart that Tushner's assertions of victory sound more like a bluff -- his words ring of insecurity. He seems to be in a hurry, opposite to conservatives who seem to be in for the long haul. The war is not yet over, says Williams.