To the Editor:
. . . As an author, I always enjoy and respect a rigorous, well-formulated review that debates on the merits the serious issues I attempt to grapple with in my scholarship. Unfortunately, Stanley C. Brubaker’s article on the second edition of my treatise, American Constitutional Law, falls far short of this standard [“Rewriting the Constitution,” December 1988]. Rather than fairly analyzing my actual positions, he sets up and attacks an army of “revolutionary” straw men. Perhaps it is easier to score points in this way than it is to confront the many varied positions I have taken—some “liberal,” some “conservative,” and some mixed. Easier, yes; honest, hardly.
Most of “Tribe According to Brubaker” is built on a series of misrepresentations of my views. For example, Mr. Brubaker attributes to me the view that laws banning marijuana and other drugs are unconstitutional infringements on individuals’ states of consciousness. In fact, I regard most such drug laws, whether effective or not, as entirely constitutional attempts to control a grave danger to society—provided government does not try to control personal consciousness as such (my p. 1326). How “radical” a position is that? I would have supposed that thought-control is beyond the power of anything but the most totalitarian, Orwellian state. I believe in no such state—but I also reject a radically libertarian position. Thus, Mr. Brubaker’s notion that I would condemn compulsory military service as a forbidden form of “slavery” is absurd, and is contradicted by my analysis of the Thirteenth Amendment (my pp. 549, 1688).
Mr. Brubaker also says I believe in radical redistribution of wealth: that, in the context of the equal-protection doctrine, “all that we have is potentially subject to redistribution.” Mr. Brubaker must have missed the pages of my book arguing that no such blanket approval of “naked redistributions of wealth” is constitutionally defensible: that the Constitution’s protections of property and contract rights are basically designed to “defend those who have from those who want” and that, whether or not “fair” from some philosophical perspective, these protections must be enforced as part of our Constitution unless and until we amend it (my pp. 606, 628).
Indeed, the bulk of Mr. Brubaker’s account of my supposed views bears so little resemblance to anything I actually argue that one wonders whose book he is reviewing. For example, he says that I believe “the entire constitutional scheme must ultimately rest” on a specific “notion of human personality.” To the contrary, I repeatedly stress that the Constitution “is the product, over time, of a series of not altogether coherent compromises”; that it does not “express any single, coherent vision or philosophy”; and that it would be “intellectual conceit” to pretend otherwise.
As to Mr. Brubaker’s two grandest charges, I can only point to what the text of my book clearly says. He suggests, first, that I think the courts should be able to do just about anything to rectify constitutional wrongs. I “would not hesitate,” he says, “to extend judicial remedies to . . . the consequences of acts that occurred . . . centuries earlier”; I supposedly believe that “massive judicial intervention will frequently be needed” to counter equal-protection violations; and that “one searches American Constitutional Law in vain for a remedy that Tribe thinks goes too far.” What sort of “search” could miss the literally dozens of pages that reflect the very opposite view? Repeatedly, I explain that many constitutional questions lie primarily or solely in the hands of elected representatives, and that there are sharp institutional limits on the power of judges to enforce the Constitution’s norms (e.g., my pp. 16, 34-42, 101-02, 340-50, 1336-37, 1351, 1502-14). Mr. Brubaker’s claim to the contrary is premised on a flat misreading of part of my equal-protection analysis (my pp. 1511-14), in which I argue that, even where courts are powerless to provide full relief for equal-protection violations because judicial remedies would be too intrusive, courts should at least identify those violations rather than pretending they do not exist, because this would be more honest and would also give important guidance to the political branches about their duties, encouraging them to exercise their undoubted powers to fashion more acceptable political remedies.
Second, Mr. Brubaker accuses me of believing that the Constitution is ubiquitous—that it deals with all fundamental matters in American life. He claims that it “seems to escape” me that “the Constitution could be silent on any number of questions, [or] that the political branches can render sound judgments on those questions.” To the contrary, as just noted, throughout my book I stress how much of the Constitution’s meaning is left to government officials and to citizens. But even more basic, my entire final chapter is devoted to explaining, and in many instances justifying, the Supreme Court’s fairly restrictive “state-action” doctrine, which limits the reach of the Constitution to avoid “preempting individual liberty” and to constrain the power of the federal judiciary in support of “federalism and the separation of powers.” Indeed, I observe how “fitting [it is] that a book about the Constitution should close by studying what the Constitution is not about.” How then can Mr. Brubaker claim that my “eagerness to use judiciary authority to implement” the Constitution’s meaning would “leave little in American life that would not be subject to judicial rule or that the people, acting through their elected representatives, would be free to decide”? Maybe he grew tired before reading the final chapter. I could extend this list of misrepresentations and omissions considerably, but perhaps my point is made.
On a few matters of substance in the article, I must plead guilty to Mr. Brubaker’s “charges” about my views. Yes, I do believe we have to defend free speech even when it makes people uncomfortable. So I do argue, as he charges I do, that the attempt to “close out . . . awareness” by suppressing obscenity is hard to square with the First Amendment, as several Justices of the Supreme Court have on occasion acknowledged. On the other hand, Mr. Brubaker is wrong to say that I treat “pornography laws [as] nothing more than a remnant of Victorian ‘hang-ups’ about sex”; I was in fact deeply sympathetic to the legislative attempts of feminists in Minneapolis and elsewhere to combat the concrete impact of pornography on women, although in the end I concluded, as did the Supreme Court, that those proposals violate the free-speech clause of the First Amendment (my pp. 920-28).
But my First Amendment position does not, contrary to Mr. Brubaker’s accusation, arise out of a disregard for the traditional “republican” ideals of “self-government” that I in fact defend at length (my pp. 98-100, 380-82, 397-98). I simply recognize that republican self-government is not the only ideal underlying the Constitution. Thus I admit to more than a passing concern for constitutional “ideals of equality and autonomy.” With regard to equality, I do believe that the political branches should strive to ensure that their actions do not impose unfair burdens on minority groups which are often overlooked in the give and take of politics, lest such groups become victims “of subconscious patterns of thought” that perpetuate benefits for the majority. As I explain in my book, such concern seems a proper responsibility of public officials sworn to uphold the Constitution and to afford equal protection of the laws to all, although this concern often lies beyond the proper enforcement powers of the federal courts (my pp. 16, 1512-14).
And yes, I do defend, as Mr. Brubaker says I do, “a strong presumption” against state intrusion in all “consensual sexual associations” except those involving force or unequal bargaining power; and I do believe a woman has “a constitutional right to an abortion” in early pregnancy—two beliefs that follow, in my view, from the very principle of non-totalitarian government. For if the state may dictate the “proper” form of sexual intimacy, what may it not tell each of us we must do? And if the state may force pregnant women from conception onward to serve as the unwilling vessels of the “persons” they have conceived, what may it not command them to do or refrain from doing with their bodies? I cannot accept the view that the state’s power over our lives is so limitless. Perhaps that belief is “revolutionary”: Americans fought a revolution to establish its underpinnings.
Mr. Brubaker and I both agree that one should not read into the Constitution something that is simply not there, as a means of advancing one’s own personal agenda. I wish Mr. Brubaker took a similar approach to writing articles.
Laurence H. Tribe
Harvard Law School
Cambridge, Massachusetts
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To the Editor:
I have worked closely with Laurence Tribe as his student, co-counsel, and collaborator for the better part of a decade, and have grown accustomed to seeing him used as the preferred voodoo doll whenever a writer wants to stick pins in that bogeyman known as “government by judiciary.” But even my jaded eyes widened at the enormity of Stanley C. Brubaker’s misrepresentation of the second edition of American Constitutional Law.
Mr. Brubaker declares that Laurence Tribe would “extend race-conscious judicial ‘remedies’ far beyond anything the Court has ever sanctioned,” and that his vision of judicial power would “leave little in American life that would not be subject to judicial rule or that the people, acting through their elected representatives, would be free to decide.” Mr. Brubaker can perhaps be forgiven for having missed the argument Tribe makes, in several other chapters of his treatise as well as in articles published a decade ago, that not all governmental duties or all constitutional norms are enforceable in the courts. But what is truly astonishing is Mr. Brubaker’s failure to grasp the argument Tribe makes in the very chapter (on equal protection) on which he concentrates.
Tribe’s thesis in that particular section is that it is the responsibility not only of the courts, but of every branch of government, state and federal, to enforce constitutional guarantees. Many of the cases in which the Supreme Court found no equal-protection violation can be explained as an often appropriate judicial reluctance to embrace the sorts of intrusive remedies that would be necessary to redress or to relieve such violations. In that situation, Laurence Tribe argues, the courts ought to concede that a constitutional violation indeed exists, but to conclude that the courts, as opposed to the political branches of government, are powerless to provide relief: “A right to equal protection of the laws,” he writes, “even if not perfectly enforceable in a court, remains a right legally valid to its full conceptual limits ”
In this way, the courts would fulfill their role of expounding the Constitution while respecting the boundaries of their remedial power and providing Congress, the executive, and state-government officials with guidance on how to fulfill their sworn constitutional duty of making good on the promises of the Fourteenth Amendment. Laurence Tribe concludes this chapter with the observation that eradicating contemporary vestigial and inertial racial injustice “will require not only the ad hoc, episodic efforts of the judiciary, but also the more flexible and continuous tools possessed by the executive and the legislature for systematically bringing about systemic change.”
Mr. Brubaker seems to have been so committed to showing how Laurence Tribe “rewrites” the Constitution that he felt free to rewrite Tribe’s treatise in order to support his own thesis. Contemporary constitutional discourse has deteriorated to the point where disagreement is all too aften accompanied by denunciation. It would be nice if we could at least avoid deceptive mischaracterizations as well.
Brian Stuart Koukoutchos
Cambridge, Massachusetts
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To the Editor:
Stanley C. Brubaker essentially defines obscenity as “[that which]offends what is high and appeals to what is low in human character, . . . [that which] corrupts and debases character.” He believes that the Supreme Court has the right to, and should, ban “obscene” material.
What is most curious about this line of argument is that Mr. Brubaker clearly restricts his definition of “obscene” matter to sexually explicit material—the subject, indeed, of the Supreme Court decisions which he invokes in determining what counts as obscene. One wonders if this notion of sexual material as uniquely debasing is indeed—and is nothing more than—a product (as Mr. Brubaker ironically puts it) of “Victorian ‘hang-ups’ about sex.”
Otherwise, and more importantly, what does Mr. Brubaker think our society, and our Supreme Court, ought to do about other material that “corrupts and debases character”? The TV program Lifestyles of the Rich and Famous, for example, which patently “appeals to what is low in human character,” or Morton Downey, Jr.’s crude and vulgar program, which debases the human intellect by suggesting that an idea is only a less manly substitute for a punch in the mouth? Or Rambo movies, or Jacqueline Susann novels, or Soldier of Fortune magazine? Should these be censored, or banned?
Mr. Brubaker may, of course, not agree with my judgment of what is debasing, as I may not agree with his—and 100 other citizens may well produce 100 lists of corrupting (i.e., obscene) material that offends both of us. Consider the range of examples—from Huckleberry Finn and Playboy magazine to The Wizard of Oz and The Diary of Anne Frank—that feminists, black activists, fundamentalist Christians, and simple prudes have sought to ban or restrict.
It is precisely to this state of affairs that our First Amendment is addressed; its gist is that neither my notion nor Mr. Brubaker’s nor that of a shifting majority of citizens will determine what uplifts or improves or enriches other citizens, but that I will, however errantly, make that judgment for myself—as will Mr. Brubaker and other Americans for themselves. If this be “autonomy” (Laurence Tribe’s . . . “liberty”), make the most of it—for that is exactly what our Framers wanted a free, adult citizenry to do.
Robert L. Cohen
Brooklyn, New York
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To the Editor:
Stanley C. Brubaker’s brilliant critique of the jurisprudence of Laurence Tribe. . . . should be required reading for all American law students. Mr. Brubaker’s only fault is that he fails to go far enough in his analysis of judicial activism. Laurence Tribe is not rewriting the Constitution, he is destroying it, and with it, both democracy and republican government.
It would not be out of character for a Supreme Court of nine Laurence Tribe clones to abolish elections themselves as being in violation of the Fourteenth Amendment. The United States Senate is, after all, 98-percent white and 99-percent male. The example may seem absurd, but it would be no more extreme than a decision like Roe v. Wade or the one-man, one-vote apportionment decision.
To see the death of constitutionalism we need only look at what the Constitution says and what the judicial activists say it says. The Bill of Rights begins with the statement, “Congress shall make no law. . . .” Clearly, it is intended to protect the people and the states from interference by the federal government. The Ninth and Tenth Amendments reiterate this intention. Yet the judicial activists use the Bill of Rights as a weapon to impose their liberal political ideals on unwilling states and the people themselves. Similarly, the judicial activists abuse the laws passed by Congress. The Civil Rights Act of 1964 totally outlaws racial discrimination, yet the courts have construed it as requiring discrimination. . . .
One other point should be made . . . about the current status of the Supreme Court. . . . If President Bush gets to replace the two judicial activists, Thurgood Marshall and William J. Brennan, with Justices like Anthony Kennedy or Antonin Scalia, the next few years will see the death of the Laurence Tribe school of judicial activism.
Susan M. Jordan
Washington, D.C.
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To the Editor:
Laurence Tribe, like Orwell’s O’Brien, knows that “the party is in possession of absolute truth, and clearly the absolute truth can never have been different from what it is now.” Laurence Tribe’s “party,” a cabal of liberal professors who dominate the nation’s law schools, has discovered absolute truth in the Constitution. Remarkably, as Stanley C. Brubaker ably describes, their version of the Constitution closely adheres to contemporary notions of liberalism as espoused by the Democratic party’s left wing. While few ordinary citizens would believe that the Framers of the Constitution in 1787, the Bill of Rights in 1791, and the Civil War Amendments in 1866, intended to incorporate in those documents a political philosophy so perfectly anticipating modern liberalism, Laurence Tribe and his colleagues truly believe—or at least maintain—that the Constitution provides textual, political, and moral support for an agenda that is at war with traditional American political and cultural values. . . .
Laurence Tribe’s constitutionalism is deeply suspicious of democracy. In his view, the principal reason that constitutional law exists is to “correct” the excesses and failures of democracy. . . . He fundamentally rejects the American experiment in limited government in favor of a judicial autocracy ironically promising personal autonomy at the same time that it tramples on basic democratic values.
Laurence Tribe has done more than merely “rewrite” the Constitution. His revisionism is nothing less than a bloodless coup. . . .
Timothy Tymkovich
Broomfield, Colorado
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Stanley C. Brubaker writes:
I thank Timothy Tymkovich and Susan M. Jordan for their letters of support and their additional observations on the jurisprudence of Laurence Tribe. I cannot, however, share Miss Jordan’s optimism about the early demise of ultraliberal jurisprudence, even if President Bush makes a couple of intelligent Supreme Court nominations. Given the hold that the Left has on the legal academy, I suspect this jurisprudence will be with us as a major force for years to come.
In response to my comments on obscenity, Robert L. Cohen sounds the alarm of oppression, asserting that any distinction between high and low, worthy or unworthy, threatens fundamental principles of freedom of speech. Without launching a disquisition on obscenity, I wish to suggest, quite to the contrary, that unless we make such qualitative distinctions, liberty is seriously endangered.
Mr. Cohen, it seems, like Mr. Tribe, would like to abolish all such distinctions: religious beliefs, political ideas, obscenity, and drug-induced states of mind—all that we might call “brain events”—should be equally protected. Remarkably, the radical feminists take this same position in their attack upon pornography, believing that the traditional definition of obscenity, with its notion of prurient interests and a hierarchy of values, reflects and perpetuates paternalism and patriarchy. This explains why someone like Mr. Tribe, while ridiculing traditional concerns with obscenity in one section of his treatise, can, in the section immediately following, manifest “deep sympathy” for the feminist attack on pornography.
Egalitarians all, these feminists do not wish to impose their value judgments on the expression of obscenity itself. Rather, they are concerned about the concrete harm the expression causes to women. No doubt pornography does cause harm, but if harm or violence is the measure, I think it would be easy to demonstrate that equal violence may ensue from speech we hold to be at the very core of the First Amendment—for example, the speech of abolitionists, civil-rights activists, and antiwar critics. So under the Tribe/Cohen approach, the First Amendment must either carry as its burden all the harm that may ensue from pornography and drugs, or surrender all expression (equally) to state control once it reaches a certain level of harm.
Contrary to this approach, it seems to me more faithful to the intention of the Framers, the presuppositions of republican government, and the dictates of common sense to adhere to the traditional line and the present Court doctrine on obscenity which holds that it appeals to a prurient interest and offers not a mental experience but a mere physical sensation. The constitutional protection accorded to it should therefore be the same as is given to other sex stimulants and drugs.
As for Laurence Tribe himself, it is not surprising that he should now pretend not to have written the book that I reviewed; it is easier to claim misrepresentation than to defend the fundamental principles of his treatise.
Let me consider in turn his various claims:
1. Drugs: in his letter, Mr. Tribe says that he regards contemporary marijuana laws “as entirely constitutional attempts to control a grave danger to society.” He then cites page 1326 in his text, where, however, the reader will find exactly the opposite—the conclusion of a three-page argument urging a constitutional right to use psychoactive substances such as marijuana. Building from West Virginia v. Barnette and Stanley v. Georgia, Mr. Tribe states that the right of privacy and personhood must also protect the individual from governmental attempts “to regulate the ways in which the mind processes the sensory data it receives from the world.” “Put in those terms,” he continues, “the notion that the state might attempt any such thing may sound a bit preposterous. Yet courts that affirm the power of government to ban the use of such psychoactive substances as marijuana appear to be saying something very much like that.” Mr. Tribe concedes that the issue in Stanley involved not drugs but “rummaging through someone’s library to discover evidence of his mental and emotional tastes,” but he goes on to ask, “Is it so much less offensive for government to rummage through someone’s medicine chest, kitchen, and wine cellar to put together a picture of his oral and chemical predilections?” In either case, he concludes, “the offense is governmental invasion and usurpation of the choices that together constitute an individual psyche.” With his easy invocation of a totalitarian threat, Mr. Tribe thus makes a neat case for the right to use marijuana, but it hardly seems the reasoning of one who sees marijuana laws as “entirely constitutional attempts to control a grave danger to society.”
2. Compulsory military service: as Mr. Tribe knows perfectly well, I did not claim that he actually argued that compulsory military service is a forbidden form of slavery. Rather, I maintained that compulsory military service would be hard to justify under his “antisubjugation principle” and his notion of autonomy, especially as he elucidates these in the abortion controversy. As to the “contradiction” of my point by his “analysis” of the Thirteenth Amendment, again I would invite the reader to consult the two pages cited by Mr. Tribe to support his point. On page 549, he devotes a total of one-half of one sentence to the Thirteenth and Fifteenth Amendments, which “straightforwardly abolished slavery and prescribed equal voting rights for the freedman.” On page 1688, in a footnote, he devotes an entire compound sentence to the Thirteenth Amendment, simply stating the holding of three Supreme Court decisions. There is no “analysis” here, let alone a “contradiction.”
3. Redistribution: in my article I observed that Mr. Tribe’s “anti-subjugation” principle would require significant redistribution of wealth, under judicial tutelage, to create the situation that he imagines would have occurred if there had been no discrimination (either conscious or subconscious). In reply, Mr. Tribe quotes himself as saying that the Constitution bars “naked redistributions of wealth.”
This quotation (which occurs in a footnote on page 606) derives from his analysis of the Fifth Amendment’s “takings” clause (“nor shall private property be taken for public use, without just compensation”). What Mr. Tribe tells us there is not exactly that the Constitution bars “naked redistributions,” but rather that it renders them “pointless” by “effectively mandating] that government restore the status quo ante by compensating victims of takings.” That is, property is merely reshuffled, not redistributed. To achieve genuine redistribution the government must show “that the injury should remain uncompensated because the person ‘injured’ had more than his or her rightful share in the first place, an imbalance that the injury simply redressed—much as one would recapture a thief’s booty.”
In the very next section of the treatise, under the heading, “The Problematic Nature of Property,” Mr. Tribe drains property rights of any independent force under the Constitution, reducing them to reflections of what he regards as the more fundamental concerns of equality and autonomy (p. 608). In the same section he also mentions the value of “regularity,” but that concept too turns out to be defined in terms of equality and autonomy. Thus, one rightfully possesses only what one is justly entitled to expect; according to Mr. Tribe’s antisubjugation principle, as I pointed out in my article, the expectations of whites in contemporary America are, he says, “likely to be inflated, if not wholly unfounded” (p. 1537).
Mr. Tribe does conclude his chapter on contract and property rights with the observation, repeated now in his letter, that these rights function to “defend those who have from those who want,” and though they are perhaps not fair, they should be enforced anyway. I should point out, however, that nothing like this sentiment appears in the first edition of his treatise, that from the first edition to the second edition his analysis of property and its “problematic character” remains unchanged, and that the observation comes right after a sharp criticism of the Court’s modest effort in recent years to revive these long moribund constitutional rights. I hope I can be forgiven for thinking this isolated fragment to be not worthy of mention in a seven-page article on a 1,778-page book.
4. Coherence and justification of the Constitution: in the second edition of his treatise, Mr. Tribe does include the observation (which he repeats in two later footnotes) that the Constitution is “the product, over time, of a series of not altogether coherent compromises.” Were Mr. Tribe an advocate of original intent, this point might be of great significance; but he is not.
More revealing than this statement, in any case, and more compatible with the broad argument of the treatise, is Mr. Tribe’s explanation that he is venturing on a “unified analysis of constitutional law” that will provide a “systematic treatment, rooted in but not confined to the cases,” and “a coherent foundation for an active, continuing, and openly avowed effort to construct a more just constitutional order.” That this coherent foundation should ultimately entail an understanding of human nature, or human personality, is hardly an “intellectual conceit” but an inevitable consequence of any serious reflection on constitutional principles—one that becomes explicit in Mr. Tribe’s discussion of the “models” of autonomy and equality. There he tells us that the task of fleshing out the meaning of these models “proves inseparable from the much larger enterprise of identifying the elements of being human”; both the rights of the individual and the duties of government must “respond to a substantive vision of the needs of human personality.”
5. Ubiquity of the Constitution: Mr. Tribe’s Constitution may not be everywhere, but it does pop up wherever moral questions arise. Let me cite just one example. When the Court in 1937 abandoned its solicitude for liberty of contract, it was wrong, according to Mr. Tribe, merely to announce that legislatures were permitted under the Constitution to enact such measures as minimum wages and maximum hours; instead, the Court should have held that legislatures were required to do so in order to attack “economic subjugation and human domination.” He maintains that the Constitution should protect the individual not only from the harm of definite action by the government—such as police brutality—but also from the harm that may result from governmental inaction.
Of course, Mr. Tribe speaks tentatively about these affirmative constitutional obligations and recognizes the inability of the courts themselves to design adequate remedies (as opposed to proclaiming the constitutional right, about which he has no reservations). On the other hand, he does maintain that such affirmative constitutional obligations “fit quite naturally” into evolving conceptions of “bodily integrity,” an evolution from the presumptive right to be free from governmental “invasion” of the body to a right of governmental care of the body. For, as he puts it, “governmental omission can be as deadly as the most pointed of governmental acts.”
Mr. Tribe here cites his final chapter on “state action” to support his claim that his constitution really would leave many matters up to elected officials. Both his concept and that of the Court on state action are too technical to treat in any detail in this response. Let me just say that Mr. Tribe’s understanding of state action is conceptually bound to his theory of “substantive due process,” or unwritten rights in the Constitution, and that he vastly expands the concept of state action and thus the relevance of the Constitution by, as I indicated above, making “state inaction” a sort of state action.
6. Omnicompetence of the courts: if I “astonished” Brian Stuart Koukoutchos with my “failure” to grasp Mr. Tribe’s argument in his chapter on equal protection regarding the limits of judicial authority to provide remedies, I wonder what he thinks of Mr. Tribe’s identical “failure” in that same chapter. There Mr. Tribe writes: “If all vestiges of racial isolation in the public schools are to be ‘eliminated root and branch,’ the federal courts will require discretion to formulate remedies as complex, continuing, and wide-ranging as the problem they confront” (p. 1500).
True, elsewhere he is more equivocal. For instance, again in the same chapter on equal protection, on the pages to which I supposedly gave a “flat misreading,” Mr. Tribe ventures the theory that the Court has failed to embrace his antisubjugation principle, not because it sees something wrong with the theory but because it is concerned, and reasonably so, about the extensive remedies such a theory would entail. Rather than “masquerading” its decisions in the language of rights, the Court’s “proper course,” he tells us, “would have been to confront the remedial challenge head on: either grit the teeth and get to work fixing the inequality, no matter what it takes, or swallow hard and acknowledge that the constitutional wrong cannot be judicially put right” (p. 1512; my emphasis).
Still elsewhere, as I suggest above, Mr. Tribe does state more forthrightly that there are limits to the capacity of the courts to provide remedies for the rights it announces. But this very question of judicial competence to provide remedies arises almost entirely from his extraordinarily expansive ideas of what those are, especially those rights requiring government’s affirmative action. And the definition of those rights, he leaves no doubt, is the job of the courts.
Nowhere in this massive text does Mr. Tribe attempt to define the “sharp institutional limits” he mentions in his letter. Limits are always invoked vaguely to indicate that the courts cannot implement his program of rights all by themselves. As I said in my article, one searches in vain for an actual remedy that Mr. Tribe thinks goes too far.
Aside from these varied concerns about remedies, Mr. Tribe mentions in his treatise one other qualification concerning judicial review: the responsibility of other branches of the government to interpret the Constitution for themselves. If, for instance, the Court were to hold that a woman does not have a constitutional right to abortion, a lawmaker who thinks that the Constitution does embrace such a right should vote against attempts to restrict access to abortions, and a President, governor, or mayor should veto such legislation. For two reasons, I thought this qualification unworthy of notice in my essay.
First, Mr. Tribe does not couple it with the traditional idea of “deference,” that is, that the courts should respect the decisions of the democratic branches of government about the meaning of the Constitution (“judicial restraint,” he writes, “is but another form of judicial activism”). So the qualification has virtually no bearing on the role of the courts. Secondly, the record shows that Mr. Tribe himself does not take this qualification seriously. When Mayor Donald Fraser of Minneapolis was presented with a radical feminist anti-pornography ordinance, he carefully and conscientiously considered its constitutionality, deciding in the end (and I think properly) that it violated the First Amendment. By his professed principles, Mr. Tribe should have applauded the actions of the mayor, not necessarily on the substance of his decision but on the ground that he took seriously his obligation to interpret the Constitution. Instead, Mr. Tribe sent a scathing open letter to the City Council to express his “dissent and dismay,” calling the veto “an abuse of the fundamental structure of our system of government” and accusing the mayor of having “usurped the judicial function.”
In my essay, I charged Mr. Tribe with rewriting the Constitution. In his reply, he succeeds in giving this charge further credibility, for we can hardly expect a man who fails to abide by his own words to abide by those of the Constitution.
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