Ted Cruz Claims He Has A List Of Communists Who Have Infiltrated Harvard Law

By Zack Beauchamp/Think Progress

During the confirmation hearing for Sen. Chuck Hagel (R-NE), Sen. Ted Cruz engaged in guilt-by-association tactics that reminded several observers (including this author) of former Sen. Joseph McCarthy (R-WI)’s baseless claim to have “a list” of Communists who had infiltrated the U.S. State Department.

It turns out Cruz was even more like McCarthy than previously thought. He believes that “Marxists who believed in the Communists overthrowing the United States government” have infiltrated the Harvard Law School faculty, outgunning the embattled campus conservatives.

Cruz’s Communist comments came in a speech to the Koch-supported group Americans for Prosperity unearthed by The New Yorker‘s Jane Mayer. Mayer attended the speech, and wrote down the text of Cruz’ McCarthyite allegations, which also linked President Obama to the so-called revolutionary Marxists at Harvard:

Cruz greeted the audience jovially, but soon launched an impassioned attack on President Obama, whom he described as “the most radical” President “ever to occupy the Oval Office.” (I was covering the conference and kept the notes.)

He then went on to assert that Obama, who attended Harvard Law School four years ahead of him, “would have made a perfect president of Harvard Law School.” The reason, said Cruz, was that, “There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.”

Like McCarthy, Cruz doesn’t name names, and that’s no surprise. As Mayer notes, “Under the Smith Act, it is a crime to actively engage in any organization pursuing the overthrow of the U.S. government.” So Cruz’s allegation could potentially mean he’s accusing a large chunk of the Harvard faculty of engaging in a federal felony.

It’s also extremely unlikely that there were any truly revolutionary Marxists at Harvard. The intellectual cohort Mayer guesses he was pointing to are advocates of Critical Legal Studies (CLS), an intellectual movement with strong roots at Harvard Law. CLS scholars argue that law and legal texts are indeterminate; in greatly simplified terms, that the law can be interpreted in basically whatever fashion judges choose. Taking after a long tradition of leftist thought (including Marx himself), CLS advocates argue that the fact of legal indeterminacy means law ends up reflecting the will and the interests of the powerful (principally rich, white men) rather than neutral adjucations of the principles that are supposed to underpin the law. A more comprehensive introduction, from Harvard Law Professor Roberto Unger, can be found here.

It’s true that this is an extremely left-wing analysis of the way that law works, but that doesn’t mean they actually wanted the Soviets to win the Cold War by overthrowing the US government, as Cruz said. Indeed, as Mayer notes, perhaps the most famous CLS exponent at Harvard, Duncan Kennedy, identifies as a “social democrat,” not a Communist and certainly not a revolutionary Soviet.

A majority of the Supreme Court’s conservative bloc attended Harvard Law School. No Marxists (that ThinkProgress is aware of) from Harvard have ascended to the Supreme Court.