The end of every war concludes with negotiations determined by the winner. In the war between liberal and conservative principles, where the number of people who support gay marriage seem to be on the ascendancy, the conservatives have been served the “terms of surrender” as losers amid the culture war of our time.

Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, has, in blunt and forthright terms, called for the abandonment of defensive liberal policies he calls “defensive crouch liberal constitutionalism”. Tushnet argues that the majority of seats in the courts of appeals and district courts are now taken by liberals who, he believes, must take a hard-line approach in pushing forward the liberal agenda; to stop playing defense. Now is the time for liberals to “stop looking over their shoulders for retaliation by conservatives” he says, as he argues in favor of offensive tactics to overthrow the rest of the remains from the culture war conservatives have lost.

Mark Tushnet is a well known proponent of critical legal theory (a school of thought founded in 1977 by law students who came out of the civil rights movement). His essay began by issuing a candid and robust litany of arguments by stating “Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided.” And further commenting: “a large body of doctrine will have to be built from the ground up”. This is in head on collision with the traditions and morals of everyday conservative Americans who believe that America is guided by the Constitution, not by questioning and redesigning the law to fit an agenda.


As Tushnet considered how to deal with the losers (that is the conservative policy makers and judges), he recommends treating the “losers” of this culture war i.e. Christians, Jews and Catholics, as the functional equivalent of racists and Nazis saying “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”

In the Old Testament the prophet Isaiah rebuked the courts of administration which at the time were contrary to God’s law of justice and truth. He saw God’s law being corrupted and twisted to condemn people and keep them in bondage. The words of God through Isaiah read “Justice standeth afar off” (Isaiah 59:14). Justice, literally “righteousness”, describes the sad state of affairs that prevailed in civil courts and Christian congregations (Nichol, Francis D.). Isaiah spoke unapologetically of the inverted moral compass which was false justice.

Referring to justice as “righteousness” and the changing of God’s law as “darkness”  is typical of biblical language which points to judgment. When bondage and darkness abound, God seems to step in to make dramatic judgments, just as He did in the Old Testament. If this is the pathway our society wants to walk down, we can be sure it won’t be conservatives that liberals should be looking over their shoulders for.

This may come as a bit of a shock to the secular world who may view this evaluation as unnecessary and maybe bigoted. But living in a civil society should not result in “winners” and “losers”. And it is the progressive left who have taken a posture of bullying, using “offensive” tactics by criminalizing and punishing those with political differences. America is a country which was founded on the principles of separation of church and state and the right to property and freedom of conscience, but that doesn’t mean secular morality should guide our principles either. Rather we intend as Christians, to uphold the Bible as the basis of truth which stands firmly with the Constitution promoting individual liberty. In Isaiah’s day justice became warped and inverted and ended up a perversion of right and wrong. Freedom seems to be an elusive concept in recent dealings between political parties. The positions on both sides of the political aisle are becoming more and more polarized as each party reaches for more power. But who’s idea of freedom will ultimately “win” the war?

The idea of freedom goes as far back as the beginning of eternity, before the creation of the earth and humanity the Bible tells us that a war took place between God and his angels. In the book The Great Controversy Pg. 502 the author wrote

“He [Satan] had claimed that the transgression of God’s law would bring liberty and exaltation; but it was seen to result in bondage and degradation.”

Also on Pg. 503 it reads

“In the final execution of judgment it will be seen that no cause for sin exists. When the Judge of all the earth shall demand of Satan, “why hast thou rebelled against me, and robbed Me of the subjects of My kingdom?” the originator of evil can render no excuse. Every mouth will be stopped, and all the hosts of rebellion will be speechless.”

Transcending moral absolutes seems to be a new pastime for the progressive left as continual pressure is put on the those conservatives who value life and religious principles found in the Bible which inform how they ought to live in society. But reaching for new heights in human morality can be dangerous.

We now realize opponents to Mark Tushnet have been given the terms of surrender: “give up, it’s over”. We are to be treated with scorn and contempt. In the eyes of his court, we are bigots, racists and intolerant fascists out for blood; therefore we must be treated as such. But we as Christians know how the story ends. The fast decline of traditional moral values will eventually be restored to a perfect way of life where there is no death or sin (Isaiah 14:13-14, Ezekiel 28:18-19, Malachi 4:1).

“The whole universe will have become witnesses to the nature and results of sin. And its utter extermination, which in the beginning would have brought fear to angels and dishonor to God, will now vindicate His love and establish His honor before the universe of Beings who delight to do His will, and in whose heart is His law.” – The Great Controversy Pg. 504

Thus says the word of the Lord, “Affliction shall not rise up the second time.” – Nahum 1:9



Tushnet, Mark. “Balkinization: Abandoning Defensive Crouch Liberal Constitutionalism.” Balkinization: Abandoning Defensive Crouch Liberal Constitutionalism., 06 May 2016. Web. 25 July 2016.

“Critical Legal Studies.” Wikipedia. Wikimedia Foundation, n.d. Web. 25 July 2016

“Critical Legal Studies Movement.” The Bridge. Berkman Klein Center for Internet & Society, n.d. Web. 25 July 2016.

Williams, Thomas D., PH.D. “Harvard Prof Urges Liberals to Treat Evangelical Christians Like Nazis.” Breitbart News. Breitbart, 10 May 2016. Web. 25 July 2016.

Nichol, Francis D., and Milian L. Andreason. “Isaiah 59:14.” The Seventh-Day Adventist Bible Commentary: The Holy Bible with Exegetical and Expository Comment: In Seven Volumes. Vol. 4. Hagerstown, Md: Review and Herald Association, 1955. 310-11. Print.

Tushnet, Mark. “The Dilemmas of Liberal Constitutionalism.” The Dilemmas of Liberal Constitutionalism 42.1 (1981): 411-26. The Ohio State University Knowledge Bank. Web. 25 July 2016.