Laurence Tribe Quotes

[I]t is puzzling that purely process-based approaches—designed to deny the need for, and legitimacy of... substantive theory—should... continue to find... articulate proponents and persist in attracting... adherents.

The crux of any determination that a law unjustly discriminates against a group... is... that the law is part of a pattern that denies those subject to it a meaningful opportunity to realize their humanity. ...[S]uch an approach must look beyond process to identity and proclaim fundamental substantive rights—including substantive rights to participate on equal terms in the evolution of law and policy. ...[I]mportant aspects of constitutional law, including the determination of which groups deserve special protection, can be given content in no other way.

One cannot speak of "groups" as though society were objectively subdivided... Instead, people draw lines, attribute differences, as a way of ordering social justice—of deciding who may occupy what place, play what role, engage in what activity. Thus, in order to justify the role of chattel that blacks initially played in our society, we may have differentiated that role by describing it in terms of the most obvious distinguishing feature... equating race and role. This equation and thus "group" survived the Civil War and the Thirteenth Amendment... simply by reason of confusion or inertia, but because the role that society allowed remained partially unchanged; thus, the need to justify the role by differentiating it, by seeing not the role but the group—"inferior" blacks capable of nothing better...—persisted.

[G]overnmental action that burdens groups effectively excluded from the process is constitutionally suspect. In its most sophisticated form, the resulting judicial scrutiny is seen as a way of invalidating governmental classifications and distributions that turn out to be motivated either by prejudiced hostility or by self-serving stereotypes.

The question whether individuals may insist on being heard by rulemakers, for whom they already (directly or indirectly) voted, has bedeviled administrative law since the turn of the century.

[M]ost of us would readily concede that the framers of the 1787 Constitution adopted a federal system of government organization in order to, among other goals, help secure the institution of private property. When Madison, in his theory of faction, suggested that shifting the legislative responsibility for certain problems from the state to the national level could help assure that majorities would not trample on minority rights, the problems he had in mind were largely economic; the minority rights... were, for the most part, rights of property and contract.

[W]hy do thoughtful judges and scholars continue to put forth the process-perfecting theories as though such theories could banish divisive controversies over substantive values from the realm of constitutional discourse by relegating those controversies to the unruly world of power?

[I]t is largely because I find all exercises of power by some over others—even with what passes for the latter's consent—are and must remain deeply problematic, that I find all legitimating theories not simply amusing in their pretensions but... as dangerous as they are convincing.

I am... moved... by a sense of the ultimate futility of the quest for an Archimedean point outside ourselves from which the legitimacy of some form of judicial review or constitutional exegesis may be affirmed.

No one... persuaded that the categories of constitutional discourse, or of law generally, are readily rendered determinate and certain—and no one who believes that those categories are inherently empty, infinitely malleable, and ultimately corrupt—need read any further.

[J]ust as I am not writing for those who feel confident that canons of appropriate constitutional construction may be convincingly derived from some neutral source, so I am also not writing for those who have convinced themselves that "anything goes" as long as it helps end what they see as injustice; that constitutional law is only a legitimating mask for what those in power can get away with; or that it is only a tame language in which those that would otherwise foment violent revolution can couch their demands in forms the regime might accept without losing face.

[A]lthough the effort was finally rejected by the Senate, the House was sufficiently persuaded by James Madison's fear of state and local oppression... to approve a constitutional amendment... that "no State shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases." ...[H]e came close to succeeding in 1789, and... it took a Civil War to make the difference.

[A] Bill of Rights directed against federal abuses was thought necessary in addition to the separation and division of powers...

If the legislature would punish, it must enlist... the other branches—the executive to prosecute, the judicial to try and convict.

In the first model, the centralized accumulation of power in any man or single group... meant tyranny; the division and separation of powers, both vertically (...federal, state and local...) and horizontally (...legislative, executive, and judicial...) meant liberty.