John Derbyshire: “Like Nazis After 1945” — Never Forget The Bullet We Dodged When Hillary Was Defeated

07/02/2017

[Adapted from the latest Radio Derb, now available exclusively on VDARE.com.]

From time to time, our President displays a lack of self-restraint, allowing his inner nitwit to escape from its cage, as in his feuds with Mika Brzezinski and CNN. At least, that how it seems to me in my geezer-like way — I know younger Dissident Righters think it’s hilarious. Still, I can always console myself by reflecting on what a huge, lethal bullet the U.S.A. dodged last November.

By way of illustration, here’s something I picked up from the Twitter thread of anonymous tweeter "tcjfs" — that’s his Twitter handle — who is one of the most prolific and insightful tweeters on the Dissident Right.

There’s a link to a blog post at the blog of Jack Balkin (below left — email him) who is a Professor of Constitutional Law and the First Amendment at Yale Law School.

This particular post on Prof. Balkin’s blog is not by him, but by a different constitutional scholar, Prof. Mark Tushnet(below left) who teaches at Harvard Law School.

So we have a Harvard law professor writing on the blog of a Yale law professor. Dodged a bullet? What we dodged here was a heavy artillery barrage.

The blog post is dated May 6th last year, six months before the election, when all reasonable people — and who could be more reasonable than a couple of Ivy League Law School professors? — assumed that Mrs. Clinton would be the country’s next president.

Looking forward to that blessed prospect, Prof. Tushnet (right — email him) contributed this post at Prof. Balkin’s blog: "Abandoning Defensive Crouch Liberal Constitutionalism." Opening four sentences:

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. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).
It’s time to stop.

Prof. Tushnet then lays out a program for Leftists, once they have swept to power in last November’s election, seizing all the commanding heights of constitutional jurisprudence.

The whole thing is too long to quote, and written in law-school-professor-speranto, so I'll just pick out some highlights.

With a solid liberal majority on the Supreme Court, justices should, Prof. Tushnet tells us:

Overrule key cases. Prof. Tushnet offers a list. Head of the list is the 1978 Bakke ruling, that imposed some slight, cautious restraints on Affirmative Action in college admissions, ruling out blatant racial quotas, for example. According to Prof. Tushnet, the ruling amounted to "rejecting all the rationales for Affirmative Action that really matter."
Deal sternly with what Prof. Tushnet calls "the losers in the culture war." Quote: "The war’s over, and we won." Further quote: "Taking a hard line seemed to work reasonably well in Germany and Japan after 1945." This is what tjcfs means by treating us like “Nazis after 1945.” Just to remind you, this is a professor of constitutional law at America’s most prestigious law school.
"Exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling. " The assumption here is that with Mrs. Clinton in the White House, liberal justices would be able to overrule anything at all; but where it’s too much trouble, a precedent should be interpreted with maximum progressive spin.
Be more ideological! Conservatives are too dimwitted consciously to practice ideological jurisprudence, although the results of their rulings are anti-progressive none the less. Progressives should have their ideology always in mind.
Be bold and triumphalist, like Justices Brennan and Marshall (Tushnet clerked for Thurgood Marshall in the early 70s)…not timid and accommodating like that squeaky little mouse Ruth Bader Ginsburg, whose "work as a judge has been shaped more than it should be by defensive crouch constitutionalism."
Stop pandering to Justice Kennedy, whose vote won’t be crucial any more.

That’s an executive summary of Prof. Tushnet’s prescriptions last May at Prof. Balkin’s blog. He closes with the following, quote:

Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.

Oh, I do hope so, Professor!

And a sidebar note here: On that sixth bullet point, the one where Professor Tushnet tells liberals to stop pandering to Justice Kennedy, he doesn’t actually use the words "stop pandering." He actually uses an obscene four-letter verb with Justice Kennedy as its object: “F — Anthony Kennedy.” (Italics his, dashes ours.)

That, apparently, is how Ivy League law-school professors speak about their ideological opponents nowadays.

Further confirmation there of one of Radio Derb’s running themes: That progressives are the potty-mouth party. They are the faction that can’t speak or write a sentence — or at any rate, to be perfectly fair to Prof. Tushnet, a blog post — without a four-letter word in it.

These types can’t carry out connected thought for long without the reptilian brain stem breaking through to bark an obscenity. Their grip on reasoned discourse is not strong.

Self-restraint again: not always in evidence on the Right, to be sure, but well-nigh extinct on the Left, even among Ivy League law professors.

John Derbyshire writes an incredible amount on all sorts of subjects for all kinds of outlets. (This no longer includes National Review, whose editors had some kind of tantrum and fired him. ) He is the author of We Are Doomed: Reclaiming Conservative Pessimism and several other books. He’s had two books published by VDARE.com: FROM THE DISSIDENT RIGHT (also available in Kindle) and From the Dissident Right II: Essays 2013. His writings are archived at JohnDerbyshire.com.

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