Prominent Harvard Law professor: 'The rule of law' and 'the First Amendment' are 'almost entirely without content'

|The Volokh Conspiracy |

In my book "Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law," I point out that "very ideas of the rule of law and the individual liberty that the rule of law was thought to protect came under a series of attacks in the legal academy from the [radical] left starting in the late 1970s." I suggested that these attacks, while often resisted by the more moderate legal left, did ultimately have substantial influence even among the moderates, and therefore served to undermine legal liberals' commitment to the rule of law as it was traditionally understood.

I've gotten a fair amount of feedback to the effect that only a few wild-eyed radicals really reject the notion of the rule of law, and surely such individuals have had little influence on the mainstream of legal liberalism. I therefore was struck by Harvard Law Professor Mark Tushnet's post at the Balkinization blog on Saturday. Tushnet (for whom I have high personal regard, both personally and professionally) was decades ago considered an enfant terrible of Critical Legal Studies, but nowadays is a pillar of the academic establishment. He has a prestigious, lucrative chaired professorship at Harvard, blogs at the leading left-leaning law professors' blog and occasionally for the American Constitution Society (the liberal analogue to the conservative/libertarian Federalist Society), is former president of the Association of American Law Schools (you can't get more establishment than that), and, perhaps most significant, is the fourth most-cited constitutional law professor in the United States.

Here's what Tushnet has to say about the rule of law (and the First Amendment):

I feel compelled to note that—except for blatantly strategic reasons that I actually wouldn't find compelling—I almost certainly wouldn't endorse the view that Trump shows contempt for the rule of law and the First Amendment—not because I agree with his views, of course, but because "the rule of law" and "the First Amendment" are almost entirely without content, so that I don't know how someone could show contempt to "them"—if there's no there there, I can't see how you could be contemptuous of "it."

Tushnet's views are hardly unique, but broadly reflect the views of scholars associated with various "critical movements" (Critical Legal Studies, Critical Race Theory, Catharine MacKinnon-style feminism).

It's always hard to trace the precise practical influence of academic ideas. But what are the odds that views like these have not influenced the perspective of the past couple of generations of liberal lawyers? And if Obama administration lawyers have at least a creeping suspicion that the concept of the rule of law is vacuous, and instead that law is just politics by another name as critical scholars have argued for decades, it's easy to see how that would influence their decision-making, especially at the margins.

And just to be clear, I think that Donald Trump does show contempt for the rule of law and the First Amendment, which I believe have plenty of "content." In Trump's case, I don't think it's a rejection of the concept of the rule of law as much as complete, willful ignorance of the principles underlying our legal system.

UPDATE: Based on a discussion in the comments, some readers may be misunderstanding me as arguing that views like Tushnet's are *evidence* that the Obama adminsitration has been bad on rule of law issues. No, if one doesn't accept the premise that the administration has been bad on such issues, than one should completely ignore arguments about causation, including my own.

That said, I wrote a book arguing that the administration has been bad, not on every issue, but on too many. If one find the case I make persuasive, the question of causation arises, especially given Obama's own campaign rhetoric and the high hopes many of us (even some of us who didn't vote for him) had that given his background he would be an exemplar of traditional legal liberalism, which put a great deal of emphasis on fidelity to the rule of law.

One explanation I suggest is that the concept of the rule of law has become less compelling among elite legal liberals thanks to decades of attacks from academics such as Tushnet. I also give at least four other (not mutually inconsistent) explanations in the same chapter, and readers can accept all, some, or none without rejecting the rest of the book.