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Mark Tushnet

  • Ordained and established: HLS scholars dissect the framers' contributions

    Ordained and established: HLS scholars dissect the framers’ contributions

    September 18, 2017

    On Sept. 17, 1787, the framers of the U.S. Constitution gathered to sign the historic document created to unite a group of states with different interests, laws and cultures; today, HLS faculty voices are providing us with history, interpretation and critical analysis of that document.

  • No fly zone: City Hall refuses to raise Christian flag

    September 15, 2017

    A Christian group is threatening legal action if the Walsh administration doesn’t allow a religious flag to be raised on City Hall Plaza — the same spot they say where banners from “communist” nations as well as transgender and pride colors are set to fly...Mark Tushnet, a Harvard law professor, said the city’s interpretation that flying the flag on a city flagpole could be viewed as an endorsement would, in his opinion, hold water with a judge. “I think it’s much more likely for people to think if it’s on the city flagpole, then the city must be standing behind it,” he said. “If that’s right, then the city in my view is entitled to say no.”

  • Cities Face a High Bar to Stop Hate Groups from Marching

    August 22, 2017

    After the eruption of violence in Charlottesville, Virginia, on Saturday, extreme right-wing groups are planning to proceed with marches in Boston, California, Tennessee, Texas and Virginia in the coming weeks. Some local officials, fearful that even unrelated events organized by groups with similar messages could escalate into confrontations, are looking for ways to control or to mitigate the potential for mayhem. In Boston, where a so-called "free speech" rally is scheduled for this weekend, Mayor Martin Walsh declared, "I don't want them here, we don't need them here, there's no reason to be here," according to the Boston Herald...The fact that the event will go on underscores how, under the free speech protections of the First Amendment, cities face an exceptionally high bar to block groups from gathering, even – or especially – groups that espouse hate. "The city has to start out with the assumption that they have to grant a permit," says Mark Tushnet, a professor at Harvard Law School who studies constitutional law.

  • Why Charlottesville white supremacists are being named, shamed — and fired

    August 15, 2017

    The ugly and tragic events in Charlottesville, Va., which resulted in the death of one 32-year-old woman who was hit by a car, have sparked rallies across the country — and the firing of at least one white nationalist marcher...Employees are legally protected from being fired based on discrimination, for their race, color, religion, sex, or national origin, according to the Civil Rights Act of 1964. But the First Amendment, which prohibits the government from interfering in the free exercise of speech and religion, does not protect employees who make statements or donations in favor of causes their employers disagree with from being fired, said Mark Tushnet, a professor of law at Harvard Law School...Attending a rally — no matter what side you’re on — can get you fired. Private-sector employees are generally employed at the will of the employer, Tushnet said, and their employers can fire them as they see fit. “That includes disagreement with what they say in public,” he said.

  • President Trump is considering pardoning himself. I asked 15 experts if that’s legal.

    July 25, 2017

    President Trump’s lawyers are exploring the potential uses of presidential pardons — including whether the president can pardon himself — as part of an effort to undermine special counsel Robert Mueller’s Russia investigation, according to a new Washington Post report. I reached out to 15 legal experts and asked them if the president has the constitutional authority to pardon himself. As it turns out, this is something of a legal gray area... [Mark Tushnet]: The president's constitutional power to pardon "offenses against the United States" is limited only by excluding "cases of Impeachment." A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding.

  • Girl speaking with shapes illustration

    Faculty Books in Brief—Spring 2017

    May 18, 2017

    The concept of speech is typically defined as the communication of thoughts in spoken words. Yet the authors note that First Amendment protection of speech is far broader, covering nonrepresentational art, instrumental music, and even nonsense—individual topics that Tushnet, Chen, and Blocher focus on (in that order) in the book.

  • The US is terrible at investigating politicians. Blame the Constitution.

    May 17, 2017

    An op-ed by Mark Tushnet...Designing investigations into high-level misconduct is extremely difficult. Every nation has tough choices to make, and none has come up with a perfect solution — though it’s clear that the US system is uniquely bad. The problems Donald Trump has created for himself have put into motion the US version of the investigations in Brazil and South Africa. We are watching our political system contort itself as politicians and bureaucrats search for a credible way to investigate the depth and nature of his campaign’s connection with the government of Russia...Perhaps because we wrote our Constitution more than two centuries ago, it doesn’t set out principles for investigating high-level corruption...Modern constitutions have drawn upon two centuries of experience. We should do what we can to draw on that experience, too.

  • This Harvard law professor thinks Trump really could be impeached over Comey

    May 12, 2017

    After President Donald Trump fired FBI Director James Comey on Tuesday, it didn’t take long for people to start talking about impeachment. "It may well produce another United States vs. Nixon," said Sen. Richard Blumenthal on CNN. "It may well produce impeachment proceedings.”...Does Trump’s decision to fire Comey meet the legal threshold of obstruction of justice? And is it too early to put impeachment on the table? I put these questions to Mark Tushnet, a professor of law at Harvard University who focuses on constitutional law and 20-century American legal history..."I'm in the camp of people saying that we've started down a path that might lead to a constitutional crisis, but aren't quite at the point of crisis yet. And we could, of course, turn off the path before we reach the crisis stage."

  • Prime Minister Paul Ryan

    March 2, 2017

    ...The ultimate form of American exceptionalism is the presidential system of government. After the 2016 election, the question haunting political scientists is whether America can continue to be the exception. When a demagogue can rise to power and win the presidency without a popular mandate, we must examine our system. Key flaws in presidential systems could lead to an unstable government and a decrease in civil liberties, such as free speech...To even ever dream of changing the American system of government, we would need a constitutional convention. “To have a constitutional convention, you need a lot of people that are really upset,” Mark Tushnet, expert on constitutional law at Harvard University and previous clerk for Thurgood Marshall said in an interview with The Politic.

  • I asked 8 experts if we’re in a constitutional crisis. Here’s what they said.

    February 13, 2017

    Are we in a constitutional crisis?...Luckily, the legal literature has developed other, arguably clearer, categories for talking about heated conflict like this. In 2004, Mark Tushnet, now at Harvard Law, introduced the concept of "constitutional hardball": when political actors are clearly acting within their legal and institutional limits, but are violating past practices or norms in a way that feels unprecedented and provides advantage to their side...“In the current spat, if there is hardball going on, it takes the form of White House people bypassing the established systems for vetting executive orders,” Tushnet told me. “Not submitting them to career people in the Office of Legal Counsel, but sending it apparently only to the political, shadow person they sent over there. They can say, ‘We did send it to OLC,’ but the person who got it is not the kind of person who’d ordinarily be used to vet these issues.”

  • Talk flyer

    Diversity in the 1L curriculum explored in spring seminar and lecture series

    February 7, 2017

    During this year’s spring semester, Mark Tushnet, the William Nelson Cromwell Professor of Law, is teaching a novel seminar called “Diversity and Social Justice in First Year Classes.” It combines classroom teaching with an eight-part public lecture series examining how issues of diversity and social justice can be integrated into the core 1L classes.

  • Roe v. Wade Attorney: Trump Is Biggest Threat Yet to Reproductive Rights

    January 23, 2017

    Forty-four years ago, the Supreme Court made a surprise ruling in favor of a young attorney, declaring abortion legal nationwide. Sarah Weddington, the lawyer who argued Roe v. Wade, says now that her legacy — and the law itself— has never been more at risk. ..."There's no immediate threat to Roe v. Wade, even with a single Trump appointment to the court, but in the long run, with the possibility of a second or third Trump appointment, there is a substantial threat to the core of Roe v. Wade," Mark Tushnet, a professor at Harvard Law School, told NBC News.

  • For Evangelicals, Trump brings new hope – and a thorny question

    December 20, 2016

    After eight years of feeling “like an outcast” as a Christian, David Cox has been walking a lot lighter the past few weeks.Given an election where more evangelical Americans voted for thrice-divorced Donald Trump than they did for church-going George W. Bush, Mr. Cox has witnessed a major mind-set shift among many fellow Evangelicals – from trepidation, even fear, to hope – a sense, he says, of “being accepted again.”...But the battles between religious conservatives and the LGBT community show how quickly the terms of the fight have changed. North Carolina Gov. Pat McCrory (R) lost reelection this year partly because of his support for a bill that nullified significant protections for the LGBT community. “Ten years ago, who would have thought a politician would get into trouble for taking the position [Governor McCrory] did? And that’s a significant fact: It’s an indication of how far the battle line has moved into the territory of religious conservatives,” says Harvard University law professor Mark Tushnet, author of “Why the Constitution Matters.”

  • Professors call anti-liberal ‘watchlist’ an ‘amateurish’ intimidation tactic

    December 13, 2016

    The website,, catalogs 200-some professors from universities across the U.S. who “advance leftist propaganda in the classroom,” the About page states. The list details professors’ alleged views on everything from abortion to the Holocaust, and was created by conservative group  Turning Point USA, which aims to spread conservative ideals to young activists. ... Mark Tushnet, a professor of law at Harvard Law School, echoed Douglas’ sentiments. “I doubt that this list as such will have any effect on what professors on the list do,” Tushnet said. “I certainly don’t intend to modify my teaching or scholarship as a result of being on it.”

  • Joseph Singer speaking

    Diversity and U.S. Legal History

    December 7, 2016

    During the fall 2016 semester, a group of leading scholars came together at Harvard Law School for the lecture series, "Diversity and US Legal History," which was sponsored by Dean Martha Minow and organized by Professor Mark Tushnet, who also designed a reading group to complement the lectures.

  • Mass. professors make group’s watchlist for alleged ‘leftist propaganda’

    December 2, 2016

    Both former and current Massachusetts professors are featured on a new website created by a conservative-leaning organization that tracks and documents what it calls “radical” ideas espoused by educators...Mark Tushnet, a Harvard Law School professor, has landed on the list. The website, quoting reports published by The Washington Times and the Independent Journal Review, wrote that Tushnet “asked liberals to begin treating Christians and conservatives like Nazis.” Tushnet told the Globe on Thursday that the reports the group relied on are “misleading both in framing the concern, and in the characterization” of a blog post he wrote. He said critics took what he said “essentially out of context.”

  • Law Professor Included on Conservative Nonprofit’s ‘Watchlist’

    November 28, 2016

    Law professor Mark V. Tushnet ’67 landed on a “watchlist” of liberal professors created by the conservative nonprofit organization Turning Point USA last week. According to the group’s website, the goal of the list is to “expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom.” Turning Point USA aims to instill conservative principles such as support of free markets and limited government in college students...Tushnet said he was unperturbed by his inclusion on the list. “It’s not a big deal,” he said. “It comes with the territory.”

  • Donald Trump might pull funds if cops won’t hold illegals

    November 15, 2016

    Cities and towns can constitutionally refuse to actively help President-elect Donald Trump in his move to deport millions of illegal immigrants — but the new administration could pull millions in federal funding if municipalities don’t oblige, according to legal analysts. “Most federal grant statutes would allow the president to withdraw funds if cities don’t comply,” said Mark Tushnet, a constitutional law professor at Harvard Law School. “You start out assuming the president can do it.”

  • What Obama Can Do to Make Life Difficult for President Trump

    November 10, 2016

    ...For some perspective on what, exactly, Obama can do between now and January 20 to make life trickier for Trump, I called up Mark Tushnet. He's a professor at Harvard Law School who clerked for Supreme Court Justice Thurgood Marshall and specializes, among other things, in constitutional law and legal history. Here's what he had to say about what to expect over the next few weeks...Professor Mark Tushnet: As a formal matter, no, he hasn't exhausted his authority until noon on January 20 next year. As a practical political matter, of course, it's very unlikely he'll be able to do anything substantial during that period because he could do it and President Trump on the 21st could revoke all that he had done. As a technical matter, though, he still has all the power that a president has.

  • Christian business owners take a different legal route in battle over serving gay marriages

    October 17, 2016

    Christian business owners are pursuing a new legal strategy to oppose laws they say would force them to use their artistic talents to promote same-sex marriage...ADF hopes to win with pre-enforcement challenges, which have been an effective legal maneuver for decades on several high-profile cases involving abortion, campaign financing and the Affordable Care Act. "They require that there (is) a realistic possibility that the plaintiff would actually be subject to some enforcement action," said Harvard Law School professor Mark Tushnet. He said this generally happens when a government agency announces that a policy — such as a non-discrimination law — will be enforced, or when someone has been denied service and threatens to sue.

  • Law School Launches Series on Diversity

    September 8, 2016

    After a year that saw Harvard Law School embroiled in debates over race and diversity, Law School Dean Martha L. Minow has launched a new lecture series entitled “Diversity and U.S. Legal History.” The 10-week series, which kicked off Wednesday, is a joint effort on the part of the Dean’s office and Law School professor Mark Tushnet’s reading group, which bears the same title as the series....The lecturers—who include Law School professors Randall L. Kennedy, Tomiko Brown-Nagin, Annette Gordon-Reed, Michael Klarman, and Kenneth W. Mack, Divinity School professor Diana L. Eck—will discuss topics ranging from race in American history, to challenges facing Latinos, the originalist case for reparations, and religious pluralism...Law School professor Joseph William Singer delivered the first talk—“567 Nations: The History of Federal Indian Law”—to a crowded room Wednesday in the school’s student center. Singer recounted the development of colonial and United States law regarding Native Americans from the 18th century to the present, arguing that certain judicial rulings or government actions were unconstitutional.