Donald Trump

Harvard Law Prof: First Amendment Is 'Almost Entirely Without Content'

Does Donald Trump show contempt for the First Amendment? Not according to one liberal academic.

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Reason

Mark Tushnet, a prominent liberal law professor at Harvard University, is none too pleased about the negative media coverage surrounding Donald Trump. Pointing to a recent New York Times article which faulted Trump for his attacks on free speech and the rule of law, Tushnet wrote the following:

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."

Perhaps things look different in Professor Tushnet's classroom, but my copy of the First Amendment contains a fair bit of "content." Among other things, it forbids the government from prohibiting the free exercise of religion and it forbids the government from abridging free speech and freedom of the press. Donald Trump, of course, has directly attacked all three of those core First Amendment principles. In an attack on religious freedom, Trump said the government should forcibly shutter houses of worship. In an attack on free speech, Trump said the government should censor the internet. In an attack on freedom of the press, Trump said libel laws should be gutted so that it would be easier to silence journalists.

There is a word for Trump's agenda on these issues and that word is unconstitutional. It's a shame that a tenured Harvard law professor can't bring himself to use the correct legal terminology.

Related: Donald Trump, Enemy of the Constitution

NEXT: The second edition of my book "Democracy and Political Ignorance" - and why I wrote it

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  1. Among other things, it forbids the government from prohibiting the free exercise of religion and it forbids the government from abridging free speech and freedom of the press.

    And yet the government does it anyway.

    It’s almost like there’s no there there.

    1. And when it does, liberal law professors and judges find excuses for it, inventing “compelling government interests” to justify it. Mark Tushnet is just saying bluntly what the Supreme Court’s four liberal justices say all the time (and what the conservative justices say in the “national security” context).

      Professor Tushnet is just saying what Hillary Clinton thinks, and openly says in the context of other constitutional provisions, like the Second Amendment (that they have no content the government needs to respect).

      As Reason earlier noted, “Clinton wants to censor video games, censor television shows, censor encryption, and censor documentaries that are critical of her.”

      1. I sure hope that if Johnson makes it into the debates, he’s prepared with the 30 second soundbite of his life on the First Amendment, because it is Trump and Clinton’s biggest shared vulnerability* and a clear chance to set himself apart.

        *naively assuming that Americans still generally like free speech and religion.

        1. Will anyone actually be awake long enough to hear him?

        2. naively assuming that Americans still generally like free speech and religion

          Bad assumption. Look who gets elected.

          1. Yep, considering both of them seem to genuinely hate both of those things I can’t see any compelling evidence that your average voter cares about them either.

            You only miss things after they’re gone for the most part.

  2. I’m not sure what he means by the rule of law having no content. It’s more like a pleasant fiction, which has plenty of content, but doesn’t ultimately amount to that much.

    1. After reading the nonsensical word salad that the good professor said he couldn’t be arsed to explain further, I suspect he means this.

      1. Yeah he’s probably saying that the US has no rule of law as distinct from the rule of men, which I totally agree with. But saying it has no content is a weird way to put it.

    1. It is known.

  3. I predict we’re less than 10 years away from mainstream media publications describing “freedom of speech” as a “right-wing buzzword”.

    1. I wouldn’t be surprised if that’s already happened.

    2. They kind of already have. The eurocentric “free speech, not hate speech” mantra is professed on every university campus and gets reported on as a legitimate point of view.

    3. Oh that happened long ago. Haven’t you heard one of the hip kids deride your belief in the first amendment as “freeze peach”? IE “oh you must be one of those freeze peach people.”

      That is to say, a wacky fringe element. That’s where we are.

  4. “(Of course the claim that there’s no there there is backed up by a fairly complicated argument not worth developing here — an important component is that a reasonably well-socialized lawyer can mutter words showing that any proposition asserted to show contempt for the rule of law is actually consistent with the rule of law properly understood, and that those words are indistinguishable in principle from other words uncontroversially regarded as professionally respectable).”

    So you’ve indicted the legal profession. Technically, you haven’t shown the rule of law is meaningless, simply that the legal profession is useless in defending it.

    Of course, if you’re inculcating Harvard law students with this nihilism, then as Harvard graduates work their way into policymaking positions and/or judicial positions, then your nihilism risks becoming part of the country’s governing philosophy.

    1. This is the crux of the argument. It’s a deconstructionist view of the law. That the words can be construed with whatever meaning is desired using sufficient sophistry.

    2. And I suppose it’s convenient for Tushnet that the rule of law is a meaningless concept, given his avowed agenda of political warfare against his enemies:

      “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.)”

      1. So

        (a) he wants to go after the culture-war’s “losers” and

        (b) he thinks the rule of law is a meaningless construct.

        Nothing sinister there, nope.

        1. It’s one thing to acknowledge that the law can be interpreted differently. It’s another to wholly embrace it for expedience.

        2. And he thinks progs have been in a “defensive” crouch for too long – they need to be more aggressive!

          And “Remember that doctrine is a way to empower our allies and weaken theirs.” Followed by criticism of the *conservative* justices. Right, no projection going on.

          1. the entire phrase “defensive crouch” should be in quotes.

      2. Where is this idea from liberals that we took a hard line with Germany and Japan after 1945 coming from?

        We spent an enormous amount of time and energy helping them rebuild.

        Why are liberals trying to send the Marshall Plan down the memory hole?

        1. He’s probably got a vague impression,based on of the Allied “de-nazification” program in postwar Germany and the Japanese emperor being required to disavow divine attributes, that the nazis and fascists were purged after the war.

          In fact, as you suggest, the purge wasn’t as thorough as he would have us believe.

          But he wants us to think of SoCons – people like his daughter – as Nazi-like, justifying purging them from political life and refusing to recognize that they have any rights the SoLibs are bound to respect.

    3. Well, since progressivism’s guiding light is relativism we shouldn’t be shocked when a progressive law professor espouses the notion that words mean whatever we want them to mean. If people actually believed that the Constitution or the laws properly derived from it meant what they said at the time in which it was written, progs wouldn’t be able to run roughshod over the political process.

  5. These are the kind of people who are going to take over the Supreme Court. Good work, Trumpets. You fucking morons.

    1. …what?

      Donald Trump is now responsible for a liberal who doesn’t believe in constitutional literalism?

      Man, that Trump, he’s magically responsible for everything!

      1. Man, that Trump, he’s magically responsible for everything!

        He’s responsible for Hillary being our next president.

    2. These are the kind of people who are going to take over the Supreme Court. Good work, Trumpets. You fucking morons.

      if people like you, swing state inhabitant, let them.

  6. “Tushnet” sounds like mesh underwear.

    1. I thought it was a very particular subsection of usenet.

    2. You definitely wouldn’t want your johnson welded to it.

    3. They had to be pulled off the market. In some cases the criss-cross pattern it left on people’s groins was permanent.

      1. Really, that was part of the appeal.

  7. If it is a constitutional right, then it, like every other constitutional right, is subject to reasonable regulation…

    – Hillary Clinton

    1. Would someone please ask Hillary to define the concept of Natural Laws.

      Of course they could just put in stock video of her saying nothing for 8 seconds and it would match the response she would have to that question.

      1. +8 seconds of artistic license

  8. In an attack on free speech, Trump said the government should censor the internet.

    Well, many progressives believe the Second Amendment, at best, only protects the kinds of guns available in the late 1700s.* Maybe they believe the First only protects the kinds of speech available then as well? That would exclude the Internet, DVDs, CDs, and plenty else.

    * (Which, now that I think of it, is a strange idea from the proponents of a “living, breathing Constitution.”)

    1. “(Which, now that I think of it, is a strange idea from the proponents of a “living, breathing Constitution.”)”

      You see, they’re using a “gotcha” tactic against a straw-man they’ve constructed of conservative constitutionalism.

      “So you want to interpret the Constitution according to the original understanding? Well, then, I suppose you want to ride in horse-drawn buggies, whip your slaves, wear wigs, and use only 18th-century muskets as weapons, herp derp.”

      1. Which is, of course, horseshit. A basic tenet of contracting construction is that you use specific terms in order to narrow the scope of a provision and general terms to expand it. “Arms” is a general term encompassing an entire classification of objects. The 2A does not say “the right to keep and bear blunderbusses shall not be infringed.”

        1. I like reminding such people that not only were full-on cannon legal for civilian ownership in 1789… they still are, without so much as a NICS check*.

          (* Federally; State laws for muzzle loaders vary.)

    2. * (Which, now that I think of it, is a strange idea from the proponents of a “living, breathing Constitution.”)

      They’re orientalists when it suits their agenda, and proponents of a “living Constitution” when that better suits their agenda, nothing more nothing less.

      Also, I believe their argument goes something like “The framers of the Constitution didn’t envision people developing machine guns, and if they had they would have banned them.” Which may also seem like an odd argument for people who regard the framers as “a bunch of slave owning old white men and anything they said is therefore irrelevant” to make, but again, they’re just using whatever combination of words and syllables they think will suit their agenda. There’s no principles at play here, just whatever will result in them “winning” and getting their way.

      1. orientalists

        John?

  9. i call foul when you cite a “new york times article” but link to your previous coverage of the same!
    /obligatory-bitch

    that said…. Tushnet notes that “all the quoted scholars are libertarians or libertarian-leaning ” in that piece.

    Is that right? which surprises me; i guess libertarianish types are useful to the Times when they need to whop their enemies over the head.

    The piece mentions Ilya Shapiro (of Cato), David Post (Volokh), “the other Ilya”, and Richard Epstein of the Hoover Institution

    He’s right that maybe that’s not “The Political Spectrum”. then again, expecting honesty from the news media is a bit much. Hillary’s own contempt for the first amendment (vis a vis “citizens united” et al) i’m sure gets an entirely different bunch of “scholars” to provide exculpatory commentary

    1. one of those Ilya’s was the first sufferer (I observed, anyway) of TDS. Basically said that the GOP should just scrap every rule and write one that says, “no Donald Trump THE END”

      1. wtf are you talking about.

        “TDS”?

        1. Trump Derangement?

          1. Did that joke not get old and stupid back in 2008? It seems like the most retarded and juvenile defense of a candidate when your only reaction to criticism is, “THERE THEY GO AGAIN!! THOSE CRAZY DERANGED PEOPLE OBSESSED WITH THIS PERSON RUNNING FOR HIGH-OFFICE”

            Its what happens when people run for president – people cross-examine everything they say and do. Its not “derangement”. Its normalcy.

      2. Somin is the Ilya who’s basically Shikha + 30 IQ points. Shapiro is pretty reasonable.

  10. Trump cares only about the second amendment, all the others be damned. But then he says that “we have a huge mental health crisis” meaning that he wants to launch a witch hunt against people who he thinks should not have guns (for political reasons or otherwise – note how quick he is to diagnose people as ‘crazy’). Well at least it’s not as bad as the liberal argument: “Only crazy people think that crazy people should be allowed to own guns.”

    1. “we have a huge mental health crisis”

      Well, look at all the Bernie supporters out there….

  11. From Tushnet’s blog post =

    Of course, the claim that there’s no “there there” is backed up by a fairly complicated argument not worth developing here — an important component is that a reasonably well-socialized lawyer can mutter words showing that any proposition asserted to show contempt for the rule of law is actually consistent with the rule of law properly understood, and that those words are indistinguishable in principle from other words uncontroversially regarded as professionally respectable

    I think i get what he’s saying here (tho am not sure), and i think it speaks directly to the reading Damon Root makes of his comment.

    I think when he says “””the rule of law” and “the First Amendment” are almost entirely without content”” – he doesn’t mean they’re ‘meaningless’ so much as they are entirely passive and negative principles which allow for any amount of *criticism* by definition. If one is jawboning about laws, the implication is that one acknowledges the system’s legitimacy in the first place.

    That’s what i’m getting there at least. Anyone have a better idea?

    1. Yeah, that sounds about right.

      And I’m disappointed in Reason for leaving out that context, not mentioning how it might be interpreted, and the commentariat that didn’t bother to click through and read it.

  12. Based on the quotes here, Tushnet is an actively corrosive influence on the culture if law in this country. His is the type of thinking that enables the Clintons and the Cuomos and the Obama’s into ruling by decree.

      1. That makes sense per the above comment he makes about the “contentless” nature of the 1st amendment/rule of law ideas.

  13. Meanwhile, Tushnet’s daughter published an essay on the Hamilton musical:

    “This is the romance of government. And like all genre romance it relies on half-truths and evasions. It requires a belief that the right men in the right structures will make from power something worthy of our love?which sounds plausible until you realize nobody ever can come up with an honest example….

    “…while falling in love with a place is poignant and humbling, nobody should ever fall in love with a government.”

    1. Oh, right = she’s that lesbian conservative catholic hottie.

      the holiday-dinner conversations must be a hoot in that family.

      1. I’m really curious about her having a dad declare that people like her should be viewed and treated like Nazis.

        I don’t think the Cheneys treated *their* daughter this way.

  14. Hillary will be our glorious First Amendment defender!!

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