Tribe Says "No Mas"

JB

Orin Kerr called his post noting Tribe's decision "Professor Tribe and the Constitutional Moment." One assumes that this is a pun on my colleague Bruce Ackerman's theory of constitutional moments. Ackerman argues that American constitutional law is structured into different historical regimes with very different assumptions about constitutional law; these regimes are brought into being by revolutionary periods of constitutional change called "constitutional moments." Whether or not a "constitutional moment" in Ackerman's sense is truly in the offing (more about this in a future post), it seems clear that a key reason why Tribe is giving up his project at this point is that he thinks that the times are particularly unsettled, and that the grounds of constitutional law may shift significantly in the next decade or so.

For many years, Tribe has been a key exponent and defender of a liberal synthesis of the constitutional law created by the Warren and Burger Courts. Because Tribe has seen his job as synthesizing and reconstructing the larger themes of constitutional law as it actually exists, several of his positions have changed over the years as the Supreme Court (and existing doctrine) have become more conservative. Yet at the same time, the Rehnquist Court has pushed the liberal civil rights agenda in ways that the Warren and Burger Courts never did, for example, in the area of gay rights. Hence, until this moment, Tribe has worked on the assumption that the Supreme Court, even if it has not decided every issue in the ways he would prefer, has been working within the basic paradigms of reasoning established by the Warren and Burger Courts. Apparently, Tribe now believes that this may no longer be the case, and that a Supreme Court stocked with new Bush appointees will shift constitutional doctrine in important new directions. Perhaps equally important, Tribe appears to believe that the new Court will shift doctrine in directions that will make his synthesis of existing doctrine outmoded or irrelevant.

Whether or not he turns out to have been correct, Tribe's decision to suspend his treatise marks an important moment in American constitutional scholarship. It is important not simply because Tribe and his treatise are important, but because Tribe has symbolized the liberal establishment in American constitutional law for many years, and because, as a seasoned litigator, he is as good a judge of future trends as anyone else in the country. When Larry Tribe says that a paradigm shift may be on the way, it is worth sitting up and taking notice.

I cannot think of a scholarly decision of similar symbolic importance. Perhaps the closest is Henry Hart's decision, before a stunned audience at the Harvard Law School, to sit down and refuse to deliver the third of his Holmes Lectures in January 1963 because he was not satisfied with his solution to the problem of judicial discretion in interpretation. In retrospect, Hart's decision to sit down signaled that he could not make his understandings of public law (including in particular statutory law) cohere with the Rights Revolution that was about to sweep American jurisprudence. Tribe's decision to "sit down" and leave his Third Edition unfinished may, in time, come to have a similar meaning-- that Tribe foresaw that he could not make his vision of what the Constitution means cohere with what he believes the constitutional law of the future will become.