American Constitutional Law... final chapter... "The Problem of State Action," grappled with one of the most perplexing aspects in the law of the U.S. Constitution: its character as a body of law addressing not ordinary private conduct but only government conduct. ...[T]he law of the Constitution is a kind of meta-law. ...many instances of what might be regarded as government inaction pose troubling constitutional questions. ...[T]he Supreme Court has generally interpreted constitutional provisions as having nothing at all to say about non-governmental choices. ...One might ...say that the constitutional principle limiting the Constitution’s reach to "state action" is an unwritten command ...essentially "heard" in the sounds of constitutional silence. ...I closed the book with the question: "[I]s it not fitting that a book about the Constitution should close by studying what the Constitution is not about?"
American lawyer and Harvard Law School professor
Laurence Henry Tribe (born October 10, 1941) is an American constitutional law scholar, the Carl M. Loeb University Professor at the , and co-founder of the . He is the author of several books, including a major treatise, American Constitutional Law (1978) and has argued before the dozens of times.
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Laurence Henry Tribe
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Laurence H. Tribe
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For all these reasons, I hope you will reach the conclusion that Elena Kagan should be your first nominee to the Court. ...I can hardly contain my enthusiasm at your first hundred days. I don't underestimate the magnitude of the challenges that remain, and I... hope that I can before too long come to play a more direct role in helping you meet those challenges, perhaps in a newly created DOJ position dealing with the rule of law, but my main sentiment... is one of enormous pride and pleasure in being an American at this extraordinary moment in our history.
[I]t's easy to forget how much difference the public face of the Supreme Court can make in advancing a humane and yet suitably cautious conception of the rule of law and the role of courts in the pursuit of justice. That's a facet of the Court's role to which few justices over our history have made much of a contribution, given the significant limits on what a sitting justice can suitably say in a public forum. Louis Brandeis, Earl Warren, and Robert Jackson might be cited as exceptions. David Souter certainly couldn't be credited with success in that role, although the conspicuous modesty of his personal style was a plus... Elena Kagan would, however, combine that personal modesty with an appealing public persona and would project a well-grounded image of justice as fairness and of law as codified common sense. In that regard... a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been—and certainly than a Justice Sotomayor or a Justice Wood could be—in the kinds of public settings in which it has been all too easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison. It is important... for the simultaneously progressive and yet principled, pragmatic and yet constrained, approach to law and justice that you have espoused... since becoming president, to be embodied in the person and voice of your first Supreme Court nominee. Elena Kagan would personify that approach and would ultimately be seen by the American public to exemplify it.
It's easy to underestimate how much difference David Souter's analytical prowess and historical command have made within the Court over the past 19 years in shaping both the language of other justice's opinions and on occasion their votes in important lines of cases. Elena Kagan seems to be uniquely suited to perform that task, and to perform it for the next thirty years or longer. Dianne Wood—who is more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects... with the sole exception of Kagan, who is even smarter—would be likely to serve nearly a decade less than Elena and doesn't appear... to have the dynamic personality or the extraordinary diplomatic gifts for inspiring confidence and for moving others that have made Elena Kagan the best dean of any major law school in memory and certainly the best Harvard dean in the forty years I have spent on the faculty here.
For the Souter seat, I can't think of anyone nearly as strong as Elena Kagan, whose combination of intellectual brilliance and political skill would make her a ten-strike... I've known and worked for her... since she was my student and research assistant in the 1980s, have watched her become a scholar of the first rank and a star... teacher, and have marveled at how skillfully she transformed a school that had long been considerably less than the sum of its parts into a vibrant and wonderful place for students to learn and for faculty to teach, write, and collaborate. Her techniques for mastering the substance of the many fields in which we have made important new faculty appointments during her tenure as dean and for gently but firmly persuading a bunch of prima donnas to see things her way in case after case—techniques she has deployed with a light touch and with an open enough mind to permit others to persuade her from time to time—are precisely the techniques I can readily envision her employing not just with Justices like Kennedy but even with a justice like Alito or, on... rare occasions, with a justice like Scalia or Roberts.
I think it very important that you view the vacancy created by Justice Souter's resignation as an opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction. Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind. David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty.
[M]y reference to an "invisible" Constitution should not be confused with the way some... are prepared to disregard all or part of the Constitution in times of crisis, real or manufactured. My interest... is in what... the Constitution's words cannot hope to reveal. I'll leave for another day the views of some that—because the Constitution is not... a "suicide pact"—we should sometimes act as though parts of what it says have conveniently become invisible.
That body of materials, unlike the Constitution itself, is massive and continuously growing... and changing... Many capable scholars have argued that this elaborate edifice is entitled to great respect as the "law" of our Constitution, "law" whose legitimacy ironically is in many ways easier to defend than is the legitimacy of the underlying text itself, and whose role in enabling the Constitution to carry out the important functions in our history is not difficult to demonstrate.
[M]any constitutional scholars, political and moral philosophers, and social and political historians have described over the generations... the "unwritten Constitution," the subject of a classic study by William Bennett Munro published in 1930... "The Makers of the Unwritten Constitution,"... built on a still earlier and highly influential 1890 work by Professor Christopher G. Tiedeman... "The Unwritten Constitution of the United States." ...[S]cholarly work ...lay largely forgotten until ...resurrected in the writing of ...scholars in the 1970s. The focus... responses to the supposedly problematic legitimacy of having unelected and politically unaccountable judges resort to unenacted norms of this "unwritten Constitution" when holding duly promulgated laws and executive actions "unconstitutional."
The visible Constitution... certainly doesn't answer very many of the persistent questions about what it means in any particular case and at any particular time. Indeed, the Constitution even tells us that it doesn't tell us: The Ninth Amemdment... expressly says, "The enumeration in the Constitution of certain rights shall not be construed to deny of disparage others retained by the people." In plain English there's more than meets the eye.
[T]he question of whethor a particular amendment has... been lawfully ratified... would matter mightily with amendments as the three passed in the wake of the Civil War—the Thirteenth (abolishing slavery), the Fourteenth (defining citizenship and guaranteeing certain basic human rights to all persons in their dealings even with their own states), and the Fifteenth (abolishing racial qualifications for voting)—whose ratification by the legislatures of the former Confederate states was not exactly voluntary. Their acquiescence was secured by force, having been made a condition for their reentry into the Union from which they had attempted to secede.