[WITH UPDATE] Doubling Down AND Walking Back on "Abandoning Defensive Crouch Liberal Constitutionalism"

I figured it would not take long, between the election itself and Randy Barnett's slightly parodic (I think) recent counter-post, for Mark Tushnet to revisit his notorious Balkinization post on "abandoning defensive crouch liberal constitutionalism." My assumption was that he would (a) double down on his original post, (b) walk it back in various ways, or (c) do both. Yesterday he put up a post on the question. It is titled "Doubling Down (on 'The Culture Wars Are Over')." Despite the title, my reading is that he went with (c).

Yes, Mark writes that he will "double down on the point that clearly was most annoying--the claim that the culture wars are over, and that liberals won." I think there is a pretty good basis for that claim. The election does not directly refute it, by any means. If the election results are read as a result of economic concerns, or of working-class populism, or of nativism, they can be read as irrelevant to the culture-war questions Mark focuses on and thus not refuting his argument. If they are also read as having do to in part with a combination of those concerns and the arguable failure of the Democratic nominee to run a sufficiently smart and locally responsive campaign, or the fair and/or unfair negative perception of the candidate, or the foolishness and complicity of the party apparatus in doing its best to install a longstanding establishment candidate and her machine rather than spend the last eight years building and encouraging new candidates, or some combination of these and other factors, some within and some beyond her control, then the election results are even weaker as a refutation of Mark's argument.

The best argument against a general and confident claim that "the culture wars are over, and that the liberals won," I think, has more to do with the general nature of culture wars, which counsels against hubris or premature declarations of victory. It may be that culture wars are more or less permanent features of the American landscape, that they subside or change focus but do not simply go away, and so cannot so easily be declared "won" or "lost." I think there is some truth to this point, but also that there are strong grounds for saying that on some issues there are long-standing, seemingly permanent changes in social views on some issues. On some of the issues that Mark picks out in implicitly defining what he means by the "culture wars," there is an excellent case that the "liberals" won on those issues. We should be specific in saying that these are liberal victories, not necessarily leftist or radical victories, and that some of those victories may involve or rely on some domestication of the issues under conflict or of the "victorious" position, as in the strategic shift over a couple of decades by the LGBT movement away from some issues and positions and toward a focus on the bourgeois institution of marriage, understood and depicted as such. Although I think something was lost by steering away from more radically "queer" positions and marginalizing queerer thinkers in favor of more powerful establishment types and their views, as a fairly bourgeois person myself I can't complain too much about this. In any event, there is no doubt that there have been real changes and genuine liberal victories on some important culture-war issues among those selected by Mark. (On others, I think the "victory" is less clear or stable than he suggests, and that some of his language implicitly concedes this possibility.)

So, on the one hand, he doubles down. On the other, I think there are also significant signs of walking back his argument. Here, the evidence is less what he does say, and more what he doesn't say and how he characterizes his earlier post. Consider that line again: "I'm going to double down on the point that clearly was most annoying--the claim that the culture wars are over, and that liberals won." Given that Mark received deplorable hate mails in response to his post, I am happy to posit both that some readers (or, more likely, some readers of others writing about his post) indeed found that the most annoying point, and that he is arguing this in good faith, and with plentiful personal justification. But my take on both the original post and on much of the (public, polite) reaction to it is that for many, that was not the most annoying point of Mark's original post, nor its central or most important point. For those readers, what mattered most was not, say, the assertion that liberals had "won" on gay marriage, in a culture-war as well as a legal sense. Rather, it was the point that, after all, formed the title of the post: that liberals should "abandon [a] defensive crouch" and take a "hard line" in dealing with "the losers," complete with historical comparisons casting those "losers" in the role of the Axis powers in World War II and the Confederacy in the Civil War. [Note an update below the fold. I don't think it changes the general argument I make here, but it does add a cite to another post by Mark shortly after his initial one.]

Again, I don't doubt that Mark's most vicious correspondents were focused more on the substantive culture-war issues themselves than on the advocacy of an aggressive, uncompromising consolidation and advance on these issues by liberals, perhaps or even presumably led by a cadre of elites of the sort Mark teaches every day. But I read the public reactions to the post, at least in those media intended for generally educated readers of a conservative bent, as focused much more on the latter than the former point. And on that point, there is a contestable but fair argument that the election results, along with interviews, reporting, and some polling data, do show both that this concern was relevant and that many voters reacted strongly, not to particular substantive issues themselves, but to the idea of having centralized establishment elites entrenching their own power and using it by hook or crook to push their victories into new territories on new positions and take a "hard line" against those "losers."

On those issues, Mark's new post at a minimum deemphasizes them, on the whole is fairly silent about them, and to the degree that he addresses them seems to take a different tone, if not a different position. The earlier post acknowledged that people may differ on "question[s] of tactics," but argued that "taking a hard line . . . is better than trying to accommodate the losers. He added: "When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won." The new post contains this language:

But, what about accommodations for those with religious objections to providing business services to members of that community? Here everything turns on details, which the gloaters seem to ignore. From the outset I thought -- and wrote, but of course no one paid attention to it -- that we were likely to end up with a limited form of accommodation. I thought that it would be for relatively small owner-operated businesses whose owners had religious objections to providing what I'd describe loosely as "expressive-related" services. And I still think that's where we're going to end up, though there will be variations in the details -- size, what counts as an "expressive-related" service, and the like. For me, this sort of accommodation was itself an indication of the "we won" position.

It is true that Mark elsewhere has been more accepting of some accommodations than others have been or are. But the "abandoning defensive crouch" post certainly doesn't spell that out, and I'm not sure it's fair to tax the "gloaters" with having ignored any especially clear language on that point in the earlier post. (You can read it for yourself, of course, and may read it differently than I do.) Nor do I think they would have been out of line in reading the tone of the earlier post as being very different from the tenor of the paragraph quoted above. It appears to move from having treated accommodation and compromise as something that used to make sense but no longer does, and about which there is little good reason to compromise or accommodate either tactically or for its own sake (because "liberals regard [the positions on which accommodation or compromise is sought] as having no normative pull at all"), to now treating any future accommodations as just further confirmation of the liberal "victory."

I think it is fair to read all this as showing a degree of walking-back. [See the end of the post for an update.] And the other evidence of walking-back is more general but equally important: it's the shift in focus that is effected by treating his earlier post, or reactions to it, as having been principally about whether "'we' won" the culture wars, when I think it would be fair to read the earlier post as having been about what to do next--namely, to take a "hard line" against the "losers." That shift allows Mark simultaneously to "double down" and to remain mostly silent about a great deal of the post and the public reaction to it. That reaction includes the election results, which in their own way suggest that Mark's post contributed imperceptibly to a Trump victory and thus weakened, rather than strengthened, the liberal culture-war victory or the possibility of advancing it. (Although I firmly oppose Trump, I do not mean this as a condemnation. Good academics should write what they think and write as academics, not treat themselves as PR specialists or apparatchiks of a party or political movement.) 

At the end of his earlier post, Mark wrote: "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." It may have seemed like a throwaway line at the time. But I think it's right, or at least that constitutional doctrine around the specific culture-war issues Mark was writing about is less important now than other issues. The effect of that prospect on the culture wars is, I think, complicated, and I've written about that elsewhere in a forthcoming book review. It is possible that Mark's own blogging and writing will reflect that change in focus. But I hope he does continue to revisit these issues, and my sense is both that there will be continuing occasions to do so and that "doubling down" will not be enough. Some reconsideration of the earlier post in light of subsequent events will continue to be necessary, and will require either some genuine revisions or still more walking-back.

A couple of side issues: 1) Mark writes that another feature of the reaction to his earlier post by various critics was a "systematic misreading of the post as advice to liberal judges rather than to liberal academics--a misreading that does not give one a great deal of confidence in those who assert that they are interested in interpreting the Constitution's text as written; if they can't read a blog post's text accurately, why should we think that they can read the Constitution's text accurately?" I think the snark is not justified by the original post. If that was the intention of his earlier post, it was not so clear as to make the "misreading" egregious, let alone to justify labeling that "misreading" as "systematic." Again, you can read the post and decide for yourself. I think it is certainly true that it does not read as giving advice to judges. But neither do I read his earlier post as addressed to a "we" composed entirely of "liberal academics," or at least of liberal academics acting as actual academics. To me, it reads as advice to a "we" composed of liberals actually engaged in wielding power (possibly including judges). To the extent that it is addressed to liberal academics, they appear to be addressed in the role not of academic writers writing for academic purposes and audiences, but as writers of amicus briefs and op-eds, advisors to interest groups, advocates and strategists, and so on--in short, as apparatchiks and political actors, not academics or intellectuals, and in no way distinct from many other sectors of the political establishment. To be sure, there may be some academics, liberal or conservative, who think of themselves in precisely those terms (alas), who tailor or trim their academic writing to serve those ends, and/or who believe, with whatever hubris or self-deception, that even their law review articles are an important part of their political work. And certainly arguments can be made about the indistinctness between purely "academic" and purely "political" writing and work. Suffice it to say that I think the natural reading of the earlier post is that it was intended for an audience of fundamentally political actors acting for political purposes, and that it did not seem to place any emphasis on academic readers in particular, as opposed to elite liberal lawyers more generally. Reading it as addressed only or specifically to judges would be an error; reading it as not being addressed only or specifically to "liberal academics" would not, in my view.

2) I continue to be skeptical about the helpfulness of the historical analogies Mark offers. My earlier post, linked to in the previous sentence, registers some doubts about the analogies he used in his earlier post. In the new post, he now offers the suggestion that "[t]he gloaters are like Robert E. Lee preparing for the the battle at Gettysburg -- they expect to win, of course, but they're going to be surprised (I think)." That may be true for the awful gloaters he heard from. It is not, however, my sense of the view of more respectable and serious conservative writers, as well as some liberals and pluralists, who were disturbed by his earlier post. My sense is that at least some of those, including some of the better thinkers, do not expect to win and would not be surprised if they lost. (As for the liberals and pluralists who disagreed with his "hard line" views, as well as a number of conservatives, some of them agree strongly on some or many of the positions Mark focuses on, while disagreeing with his view of what to do next and how to do it.) They may well think, however, that the map, the ground of conflict, and the order of battle has changed significantly as a result of the election campaign and outcome, and is still changing, in a way that makes it difficult to settle on any useful historical analogy as yet.

3) Readers interested in these general issues may also be interested in this op-ed by my friends Micah Schwartzman, Nelson Tebbe, and Rich Schragger in Vox (insert usual note about Vox here), arguing that while it was common before the election to hear claims that the "left" had won the culture war--I insist again that "left" is an unhelpful term in this context, not least because treating the culture wars as one of, if not the dominant, grounds of political battle itself represented a long-term shift that emphasized certain sectors of liberalism or progressivism and marginalized other ideas and constituencies who also used to be the "left," and also because, as I argued above, liberals won some of these issues by making them more liberal than left in orientation--"all that has changed" now. As the sub-headline argues, "Trump wasn't elected as a culture warrior. [But] [h]e may govern as one." I agree with some aspects of the piece and disagree with others. I will limit myself to a few observations about it. First, the two sets of writers should engage with each other, because there are obvious differences between them, which can certainly be papered over by superficial argument but shouldn't be. Second, I cannot say I find its basic point surprising, whether I agree with all its specifics or not. It seems like a pretty settled practice to me that Republican administrations, even those whose presidents are either relatively moderate on or unconcerned about culture-war issues, understand that a price of political victory is to hand over particular cabinet departments to the cultural conservative wings of their party, and thus that whatever the president's own views are, cultural conservatives are going to get to enjoy particular fiefdoms within the executive branch. Unsurprisingly, it is also true that for Democratic presidents, including those who are relatively moderate or unconcerned about culture-war issues, it is generally understood that the cultural-progressive wing of the party is going to be handed particular cabinet departments and advance views that may be further left than those of the president. That practice is both a matter of custom and a necessary element of marshaling and satisfying political coalitions within a single party. Presidents win elections and "lead" administrations, but not without settling accounts with and giving plums to key party constituencies. Thus it is that, at least for people who oppose that president, it is a frequent complaint that the president is governing further "left" or further "right" in his or her administration than the campaign or the president's own statements and inclinations suggested. No surprise here. Third, it seems silly to rake the president-elect for having no good answer to the debating-society question how one can pledge to nominate judges who will treat some cases as "settled" while also vowing to overrule other decisions that are arguably equally well settled. On that question, they could profitably read Mark's post--or a century of legal academic writing in general, or the countless decisions of countless judges. Finally, and regardless of which issues I agree with them on and which I disagree with them on, I'm glad that the op-ed focuses on political and civic action, local as well as national, rather than on Justices or judges.      

UPDATE: As evidence that if there has been any "walking back" or, to put it less combatively, clarification, it actually occurred much earlier and not just post-election, a post by Mark has been pointed out to me--one that I should have remembered, so my apologies--that he put up shortly after the initial "defensive crouch" post. It can also be used to argue, against what I assert above, that Mark has been clearer about the possibility of accommodation on the blog itself, and in a context closely related to the initial post, if not in the initial post itself. On the other hand, I should note that the subsequent post--which is titled "What Does 'Taking a Hard Line' Mean?"--also lends evidentiary support to the argument I make here, that it is fair to read the main reaction to the initial post, and more tendentiously the main point of the post itself, as having to do with the "hard line" argument and not the "culture wars are over" argument. (The latter argument is tendentious because Mark, in the post, calls this "one parenthetical comment." Again, one will have to judge for oneself, by reading the original post, whether one believes the "hard line" argument was parenthetical or central to the post.)