Liberals, stop being so defensive. That’s the message of Harvard law professor Mark Tushnet in a new post at Balkinization, titled “Abandoning Defensive Crouch Liberal Constitutionalism.” The problem, according to Tushnet, is that liberals have been too defensive when it comes to advancing their agenda in the courts.
Now that President Barack Obama has reshaped the federal judiciary, liberal causes can win easily in court. And now that Justice Antonin Scalia has died, “judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.”
Tushnet blames what he calls the “culture wars” on conservatives, and he says liberals should now make conservatives pay. “The culture wars are over; they lost, we won,” he writes in italics. Tushnet claims that conservatives “had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy.”
Since when have liberals been defensive? The scorched earth policy has been theirs. They’ve been the aggressors—they’ve been offensive. Conservatives have been defensive.
It seems hard to envision how conservatives could have declared a unilateral cease fire when they weren’t the ones firing in the first place. Liberals aggressively sought in the courts an unlimited abortion license, a redefinition of marriage, and now for transgender bathroom policies throughout the nation. Liberals haven’t been bashful to use the courts to reshape social policy when they couldn’t win at the polls.
Read more at the Daily Signal.