Sunday, May 22, 2005

Tribe Says "No Mas"


Professor Laurence Tribe has announced that he will not publish the second half of the third edition of his famous treatise, American Constitutional Law. He gives his reasons in two fascinating letters here.

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.


The snarky explaination, of course, is when a man has been caught committing plagiarism, it's scarcely a suprise if he kills his latest opus before it faces critical examination. All face saving explainations aside...

I was fortunate to have studied ConLaw with Professor Thomas Reed Powell in 1952. He died in 1955 shortly after delivering the Carpentier lectures at Columbia in April and May of that year, some 50 years ago. His lectures were published under the title "Vagaries and Varieties in Constitutional Interpretation." The Foreward was written by Paul A. Freund and includes the following that may be relevant to Professor Tribe's situation:

"Professor Powell was an indefatigable and articulate critic of the Supreme Court over a professional span of fifty years. So long as the Court was prepared to challenge, he was ready to respond, and this he did in a current of essays numbering close to two hundred. But he steadfastly forbore to compose a more systematic study; he was forever skeptical of generalizations and he had a low opinion of the merely expository--what he called deprecatingly recitativo."

Professor Tribe did attempt the systematic study. But perhaps he finally realized that such a study would have a short shelf life. Let's give him credit for what he has accomplished while the "Vagaries and Varieties in Constitutional Interpretation" continue on.

Reading the letter Tribe wrote to readers of his American Constitutional Law it is apparent that Tribe is doing one of two things: (1) not writing a treatise that deals with the current Republicanization of the law because he truly does not understand it and cannot predict what shape it will take; or (2) realizes that he is a prime candidate for the Supreme Court if Democrats are able to demonize the Republicans as overreaching tyrants (as Balkin, and Joe Biden parroting Balkin on the Senate floor, have done) and a Democrat is elected President in 2008 but his or her majority in the Senate is narrow. If (2) Tribe will have minimalized his paper trail, and the only thing Senate Republicans could seize on is this extraordinarily diplomatically-written letter, instead of a third edition of American Constitutional Law that critiques the overreaching tyrants who intervened in the Schiavo case and sought to eliminate the judicial filibuster.

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