MIM Notes 35                    Jan 23 1989 

Book Review:

Central America and the Law: The Constitution, Civil Liberties and 
the Courts 

Mark Tushnet
South End Press, 1988

By MC2

I recommend Mark Tushnet's book Central America and the Law: The 
Constitution, Civil Liberties and the Courts (South End Press, 
1988). Tushnet is a leader of the Critical Legal Studies (CLS) 
movement and is a neo-Marxist socialist. His book provides a good 
introduction to CLS analysis of constitutional law. Tushnet shows 
that federal courts are unlikely to stop Congress and/or the 
President of the United States from funding the contras. Courts are 
almost always willing to overlook violations of the law if the 
President invokes national security grounds. Thus, it is unlikely 
that North or Poindexter will ever be convicted of violating the 
Boland amendment, which prohibited intelligence agencies from 
helping the contras without specific Congressional approval. 
(Obviously, MIM would be opposed to such military support even if 
Congress "legally" approved it).

Critical legal studies has pointed out that law is generally 
ambiguous and can be interpreted in many ways. In the Boland 
amendment it was unclear whether the words "intelligence agency" 
applied to the National Security Council, which technically under 
law simply advises the President and does not itself gather 
intelligence. Government officials accused of crimes often argue 
that no one knew what murky laws on a subject allowed or prohibited. 
Tushnet shows that courts often invoke standing or the political 
question doctrine to avoid ruling on controversial issues. For 
example, protestors who claimed the Vietnam War was illegal because 
Congress had never declared war could not win access to courts 
because judges ruled that war was a political question to be decided 
by Congress.

Tushnet makes the point that radicals can sometimes win victories 
when political elites are divided. For instance, Southern white 
elites wanted segregation, but Northern elites after World War II 
believed that segregation hurt the image of the United States in the 
Cold War against the Soviet Union and China. It was hard for U.S. 
officials to claim that they were wonderful democrats interested in 
helping Third World peoples when Blacks had few rights in the United 
States. Because political elites were divided over segregation 
liberal judges had limited autonomy to declare segregation 
unconstitutional, although for years courts did little to actually 
enforce their fine sounding words. Tushnet points out that political 
pressure from people can work sometimes. For example, Amy Carter and 
Abby Hoffman sat in at a University of Massachusetts building to 
protest CIA recruiting. The demonstrators admitted they had broken 
the law by trespassing but claimed they were justified because it 
was necessary to avert a more serious evil--the recruiting of CIA 
employees for illegal CIA actions. Most judges do not allow 
defendants to introduce the political "necessity" defense. (pp. 2-3) 
Tushnet argues that the judge in the Northhampton case allowed 
politics in because of strong community support for the protestors. 
Maoists probably would not have gotten such liberal support.

Tushnet shows that prosecutorial discretion allows prosecutors to 
ignore illegal actions by political elites. The 1794 Neutrality Act 
bars private citizens from giving money to overthrow states the 
United States is at peace with. Obviously, it is illegal to give 
money to the contras, but that is simply ignored. (p. 3)

Tushnet's main argument is that even if courts will not help radicals, 
leftists can use the rhetoric in the Constitution about due process, 
free speech and privacy to win political support. That advice fits in 
more with Tushnet's democratic socialist politics, but even Maoists can 
occasionally use the legal system or arguments about the constitution to 
their advantage as long as they remember their long range goal is to 
totally change the U.S. legal system.