Harvard Professor Says Conservatives Should be Treated Like Nazis

Harvard Law Professor Mark Tushnet has an interesting take on the “culture wars.”

In a blogpost published Friday, Tushnet said that because the Supreme Court is no longer more conservative than liberal–with the death on Justice Antonin Scalia–the time is ripe for liberals to push for changes:

“Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and–though I wasn’t able to locate up-to-date numbers–the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.”

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This isn’t a position that surprises me. If the court were more conservative, I’d take a similar stance. However, Tushnet (and liberals in general) favor judicial activism, which is something I oppose. In that regard, I wouldn’t advocate pushing for changes that fell outside the intended purpose of the judicial branch, which is to arbitrate law, rather than write it.

However, it’s what Tushnet wrote next that has me laughing, and pissed all at once (emphasis mine):

“The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars…

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.

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).”


First, to say that liberals have straight up won the “culture wars” is untrue. Just last month, Target stock dropped by 4.2 percent following the company’s announcement of their transgender restroom policies, and the subsequent boycott signed by over 1.5 million Americans.

Second, Tushnet is drawing a moral equivalence between Nazis, Confederate racists, and today’s Christians, Jews, and Muslims.

He’s saying:

After we beat the Nazis, we took a hardline stance against Nazism by refusing to entertain or even engage with those espousing such a vile philosophy. We shut it down. After the Civil War, we did the same. We refused, and continue to refuse, to engage racists. Therefore, we should do the same to those who oppose the Supreme Court ruling on same-sex marriage, those who oppose transgender restroom policies, those who oppose abortion on-demand, and other general liberal philosophies.

He’s saying that a Christian, a Jew, or a Muslim who believes in traditional marriage is morally equivalent to a Nazi or a Confederate racist. He’s saying that if you oppose the recent boom in transgender policies, or if you believe that transgender individuals suffer from gender dysphoria, and that sex-change surgery is merely treating a symptom of a larger mental illness, you are the moral equivalent of someone who wants to gas Jews, and whip slaves. He’s saying that if you oppose abortion, and believe that it’s murder, it’s actually you who are the equivalent of a murderer.

That’s the line he’s drawing.

As liberals do, Tushnet tried to wriggle his way out of his grotesque equivalence when he spoke to Independent Journal Review Wednesday.

Tushnet told IJR that his comments were “misinterpreted,” and that they were simply a small part, a “parenthetical observation,” of a larger argument. He claimed he wasn’t insisting on having “criminal trials, or disqualifying people from office.”

This is a tactic frequently used by leftists to pivot away from real issues. Tushnet made a very direct moral equivalence, then when confronted, he changed the topic. Oh, I never said we should have trials! I know, but that’s not what I have an issue with.

What disturbs me about Tushnet’s comments is his assertion that dissenters should be ignored, and therefore silenced, because they’re–as liberals love to say–on the “wrong side of history.”

Tushnet never advocated “trials” or “disqualifying people from office”–that’s his attempt at smoke and mirrors. He advocated the cultural silencing of dissenters, and compared them to Nazis and Confederates.

But here’s where it gets good. Tushnet further told IJR:

“To the extent–to the not very great extent–that there’s a connection between the specifics of post-war Germany and today, it is that the positions of what I characterize as ‘the losers’ in the culture wars should not be accorded any moral legitimacy in our future discussions.”

So…the “losers,” whom Tushnet still compares to Nazis (although to a “not very great extent”), should not be engaged because their positions are lacking in his version of morality. In other words, Christians, Jews, Muslims, and anyone else who disagrees with liberals on social issues are “immoral,” and should be shut down.

This type of thinking is leftist ambrosia; it feeds them–but it’s incredibly dangerous. Once morality is defined by who has “won,” and dissenters are persecuted (even socially), we are no longer a society of free ideas, we are an intellectual and moral prison. We may appear free, but that’s because social prisons like the one Tushnet is suggesting are designed with invisible fences.

If we sit back and allow our ethical standards to be slowly starved within the confines of a cultural wall, we will cease to be free. As history has taught us, social restrictions are often followed up by physical ones.

Frank Camp

Frank Camp breathes politics--that, and regular air. After the 2004 election ignited a passion for politics in Frank, he's been dedicated to understanding what makes people think the way they do. His goal at Constitution.com is to arm his fellow conservatives with the tools they need to fight the liberal army in an effective and persuasive manner.

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