Mark Tushnet on Confident Pluralism

Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard Law School, has a series of (mostly critical) posts about Confident Pluralism on the law professor blog, Balkinization.

Professor Tushnet’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes my civic argument for tolerance, patience, and humility.

My biggest concern is with Professor Tushnet’s criticism of what he calls the “tone” of my book. He writes: “Most of [Confident Pluralism’s] argument appears to be directed at intolerant, arrogant, impatient secular liberals” and concludes that “tolerance, patience, and humility are good things, of course, but urging them only on secular liberals is not.” I leave it to other readers to decide whether my argument is slanted in the way Professor Tushnet suggests. My hunch is that most readers, regardless of their ideological priors, will disagree with his characterization.

You can read my full response to Professor Tushnet’s posts on Mirror of Justice.  That response explains at greater length my views about the tone of Confident Pluralism, and why I think Professor Tushnet has incorrectly assumed a framework of what he calls “secular liberals” and “religious conservatives.”  The second half of my response addresses Professor Tushnet’s constitutional critiques.