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Publication Types
Categories
Laurence H. Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution (Henry Holt & Co. 2014).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Other Amendments
,
Second Amendment
,
Fourteenth Amendment
,
Fifth Amendment
,
Eighth Amendment
,
Fourth Amendment
,
Supreme Court of the United States
,
Separation of Powers
,
Federalism
Type: Book
Abstract
"From Citizens United to its momentous rulings regarding Obamacare and gay marriage, the Supreme Court under Chief Justice John Roberts has profoundly affected American life. Yet the court remains a mysterious institution, and the motivations of the nine men and women who serve for life are often obscure. Now, in Uncertain Justice, Laurence Tribe and Joshua Matz show the surprising extent to which the Roberts Court is revising the meaning of our Constitution. This essential book arrives at a make-or-break moment for the nation and the court. Political gridlock, cultural change, and technological progress mean that the court's decisions on key topics--including free speech, privacy, voting rights, and presidential power--could be uniquely durable. Acutely aware of their opportunity, the justices are rewriting critical aspects of constitutional law and redrawing the ground rules of American government. Tribe--one of the country's leading constitutional lawyers--and Matz dig deeply into the court's recent rulings, stepping beyond tired debates over judicial "activism" to draw out hidden meanings and silent battles. The undercurrents they reveal suggest a strikingly different vision for the future of our country, one that is sure to be hotly debated. Filled with original insights and compelling human stories, Uncertain Justice illuminates the most colorful story of all--how the Supreme Court and the Constitution frame the way we live"-- Provided by publisher.
Laurence H. Tribe, The Invisible Constitution (Oxford Univ. Press 2008).
Categories:
Constitutional Law
Type: Book
Abstract
As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings. In The Invisible Constitution, Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.
Laurence H. Tribe, Lawrence v. Texas: The 'Fundamental Right' That Dares Not Speak Its Name, 117 Harv. L. Rev. 1893 (2004).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Fourteenth Amendment
,
First Amendment
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LGBTQ Rights Law
,
Gender & Sexuality
,
Discrimination
,
Civil Rights
Type: Article
Albert W. Alschuler, Laurence H. Tribe, Norman L. Eisen & Richard W. Painter, Why Limits on Contributions to Super PACS Should Survive Citizens United (Univ. Chi. Pub. L. Working Paper No. 626, Aug. 8, 2017).
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Other
Abstract
Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to “independent expenditure committees” urging votes for these candidates are unbounded. No legislator ever voted in favor of this system of campaign financing, and the thought that the Constitution requires it is odd. Forty-one years ago, Buckley v. Valeo held that Congress could prohibit a $1001 contribution to a candidate because this contribution was corrupting or created an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit a $20 million contribution to a super PAC because this contribution does not create even an appearance of corruption. The D.C. Circuit declared that a single sentence of the Citizens United opinion compelled its result. The Supreme Court wrote, “[I]ndependent expenditures . . . do not give rise to corruption or the appearance of corruption,” and the D.C. Circuit declared, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.” This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court apparently did not mean this statement to be taken in the highly literal way the D.C. Circuit took it. The Supreme Court distinguishes between contribution limits, which it usually upholds, and expenditure limits, which it invariably strikes down. This distinction does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley v. Valeo noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld. The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article describes opinion polls, the views of Washington insiders, and the statements of candidates of both parties in the 2016 Presidential election. It shows that SpeechNow has sharpened class divisions and helped to tear America apart. The Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although seven years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give $20 million to a super PAC. A final section of this Article describes the efforts of the Article’s authors, other lawyers, Members of Congress, candidates for Congress, and the public interest organization Free Speech For People to bring that question before the Court. The Federal Election Commission is opposing their efforts on grounds that, if successful, could keep the Court from ever deciding the issue.
Laurence H. Tribe, Donald Trump Will Violate the US Constitution on Inauguration Day, Guardian, Dec. 19, 2016.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: News
Laurence H. Tribe, Neoliberal Agenda Has Set Democrats Back, Bos. Globe, Nov. 27, 2016.
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
Elections & Voting
Type: News
Laurence H. Tribe, The Trumpet Summons Us Again: A Post-election Call to Action, Bos. Globe, Nov. 17, 2016.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: News
Laurence H. Tribe, Classrooms With Rats Instead of Teachers: Is Detroit Denying Children of Color Their Right to an Education?, L.A. Times, Sept. 22, 2016.
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Law & Public Policy
,
Education Law
,
Children's Law & Welfare
Type: News
Laurence H. Tribe, Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine, 126 Yale L.J. F. 86 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Congress & Legislation
,
Executive Office
,
Federalism
,
Separation of Powers
Type: Article
Laurence H. Tribe & Scott Greytak, Get Foreign Political Money Out of US Elections, Bos. Globe, June 22, 2016.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: News
Laurence H. Tribe & Moshua Matz, Will Eight Justices Be the New Normal?, Wash. Post, June 3, 2016.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Laurence H. Tribe, How the Republicans Could Stop Donald Trump, Prospect Mag., April 2016.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
Type: Article
Laurence H. Tribe, Justice Divided, Delayed, and Denied: The Perils of an Empty Seat on the Court, U.S. News & World Rep, Mar. 31, 2016.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Laurence H. Tribe, From Judge to Justice: the case for Merrick Garland, Bos. Globe, Mar. 29, 2016.
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: News
Laurence H. Tribe, The Legacy of Antonin Scalia – The Unrelenting Provoker, Bos. Globe, Feb. 17, 2016.
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: News
Laurence H. Tribe, The Scalia Myth, N.Y. Rev. of Books, Feb. 27, 2016.
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Laurence H. Tribe, Scalia Didn’t Score the Touchdowns. He Redefined the Playing Field, Globe & Mail, Feb. 16, 2016.
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: News
Laurence H. Tribe, Constitutional Cruz Control, Bos. Globe, Jan. 12, 2016.
Categories:
Government & Politics
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Biography & Tribute
Type: News
Laurence H. Tribe, Acheiving Equal Dignity For All, Bos. Globe, Nov. 16, 2015.
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Gender & Sexuality
,
Civil Rights
Type: News
Laurence H. Tribe & Michael C. Dorf, Brief of Amici Curiae Professors Laurence H. Tribe and Michael C. Dorf in Support of Petitioners: Obergefell v. Hodges; DeBoer v. Snyder (Mar. 25, 2015).
Categories:
Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
LGBTQ Rights Law
,
Domestic Relations
,
Supreme Court of the United States
Type: Article
Laurence H. Tribe, Dividing Citizens United: The Case v. The Controversy, 30 Const. Comment. 463 (2015).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Government Transparency
,
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
In the five years since "Citizens United", that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no." As a case dealing with a particular controversy over a proposed publication, I believe "Citizens United" was rightly decided, for the reasons I discuss in Part I, even if it was resolved in a way that was symptomatic of judicial overreach all too common on the current Court. But as a symbol and a symptom, "Citizens United" has broader significance reflected in the Court's eventual opinion. It represents a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression. It is those trends, rather than the outcome of "Citizens United" as applied to the facts before the Court, that need to be revisited. Part II provides a first cut at rethinking campaign finance law. This effort is informed by the recognition that there are few if any easy answers in this field. The First Amendment requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme. But, as I strive to show, the Supreme Court has started to privilege — throughout First Amendment law — an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture. I believe the Court would do well to rethink that approach.
Laurence H. Tribe, Equal Dignity: Speaking its Name, 129 Harv. L. Rev. F. 16 (2015).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Fourteenth Amendment
,
LGBTQ Rights Law
,
Gender & Sexuality
Type: Article
Abstract
In the aftermath of Obergefell, it quickly became a sign of sophistication to treat Justice Kennedy’s opinion with knowing condescension. The decision may have been a political masterstroke, many thought, but it was a doctrinal dud. Kenji Yoshino’s Comment demonstrates just how glib these detractions are, and eloquently explains how Kennedy’s opinions in Obergefell and its predecessor cases have revolutionized the Court’s fundamental rights jurisprudence. In this Response, I offer my own characterization of Kennedy’s contribution. As I see it, Obergefell’s chief jurisprudential achievement is to have wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity – and to have located that doctrine in a tradition of constitutional interpretation as an exercise in public education. Equal dignity, a concept with a robust doctrinal pedigree, does not simply look back to purposeful past subordination, but rather lays the groundwork for an ongoing constitutional dialogue about fundamental rights and the meaning of equality. Obergefell is an important landmark, but it will not be – and should not be – the last word.
Laurence H. Tribe, The Clean Power Plan is Unconstitutional, Wall St. J., Dec. 23, 2014, at A13.
Categories:
Environmental Law
,
Constitutional Law
Sub-Categories:
Energy & Utilities Law
Type: News
Laurence H. Tribe, Peek-A-Boo: Justice Breyer, Dissenting, 128 Harv. L. Rev. 498 (2014).
Categories:
Government & Politics
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Administrative Law & Agencies
,
Congress & Legislation
,
Biography & Tribute
Type: Article
Laurence H. Tribe, Ronald Dworkin (11 December 1931 - 14 February 2013) 158 Proc. Am. Phil. Soc'y 155 (2014).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Charles Fried, Frances Kamm, Frank I. Michelman, John C.P. Goldberg, Laurence H. Tribe, Martha Minow & Richard H. Fallon, In Memoriam: Ronald Dworkin, 127 Harv. L. Rev. 489 (2013).
Categories:
Government & Politics
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Legal & Political Theory
,
Biography & Tribute
Type: Article
Laurence H. Tribe, Respecting Dissent: Justice Ginsburg's Critique of the Troubling Invocation of Appearance, 127 Harv. L. Rev. 477 (2013).
Categories:
Government & Politics
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Laurence H. Tribe, America's Constitutional Narrative 141 Daedalus 18 (2012).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Laurence H. Tribe, The Constitutionality of the Patient Protection and Affordable Care Act: Swimming in the Stream of Commerce 35 Harv. L. & Pol'y Rev. 873 (2012).
Categories:
Health Care
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Congress & Legislation
,
Health Law & Policy
Type: Article
Laurence H. Tribe, "Big Abuse of Public Power": A conversation with the constitution expert Laurence H. Tribe, 61 Internationale Politik 116 (2006).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Politics & Political Theory
,
Public Law
Type: Article
Laurence H. Tribe, Jeremy Waldron & Mark Tushnet, On Judicial Review - Laurence H. Tribe, Jeremy Waldron, and Mark Tushnet Debate 52 Dissent 81 (2005).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
Type: Article
Abstract
The Spring 2005 issue of Dissent featured a forceful article by Mark Tushnet, "Democracy versus Judicial Review," which proposed an End Judicial Review Amendment (EJRA) to the U.S. Constitution. It would read, "Except as authorized by Congress, no court of the United States or any individual state shall have the power to review the constitutionality of statutes enacted by Congress or by state legislatures." Two leading legal philosophers argue with Tushnet and he replies.
Laurence H. Tribe, The Ones I Feel Sorry For (In Memoriam: John Hart Ely), 117 Harv. L. Rev. 1760 (2004).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Laurence H. Tribe, The Unbearable Wrongness of Bush v. Gore, 19 Const. Comment. 571 (2003).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
,
Elections & Voting
Type: Article
Abstract
Professor Lund is virtually alone in defending not only the Supreme Court's equal protection rationale in Bush v. Gore, but also the Court's startling decision to shut down the Florida recount process and thereby foreclose any opportunity for the State of Florida to actually implement the equal protection principles the Court purported to be enforcing. Professor Lund even characterizes Bush v. Gore as "simply not a close case." If the case was not close, the reasons are not those Lund so cavalierly assays. Part I defends my argument that the Court's per curiam opinion cannot be grounded in any previously recognizable form of equal protection doctrine. Professor Lund's argument to the contrary is that Bush v. Gore was but a logical extension of the "one-person, one-vote" jurisprudence illustrated by Reynolds v. Sims. He relies almost exclusively on the statement in Reynolds that the Constitution forbids weighing "votes of citizens differently, by any method or means." Professor Lund (conveniently unwilling to embrace this principle as a proper reading of the Equal Protection Clause) treats this statement as establishing a precedent so sweeping and amorphous that it cannot be taken seriously, particularly in the context of ballot counting. Professor Lund apparently would extrapolate the statement to encompass virtually all disparities, not only between classes of voters, but among methods of recording and tallying votes and interpreting ballots. Far from a "disinterested" analysis, this absurdly literal fidelity to "one-ballot, one-vote" is the essence of jurisprudence by slogan. Any coherent approach to "one-person, one-vote" must incorporate a structural theory of how votes should be aggregated. Nothing in Reynolds or any other case suggests that a state cannot be selective in deciding which types of ballot errors are worth recounting in a particular circumstance, subject only to a requirement of rationality. Bush v. Gore did not involve a problem of valuing or weighing some votes more than others, much less deliberately packing or diluting groups of voters, but instead involved the obviously distinct problem of differentially treating ballots as evidence of votes. The Florida Supreme Court's remedy did nothing to alter the manner in which legally cast votes were weighed in the overall state scheme to choose presidential electors. At most, the scheme created the possibility that different standards would be used for determining what constituted a legal vote. But the much maligned "intent of the voter" standard on its face treated all voters equally. It was only in the application of that standard that equal protection violations could have arisen - and even those violations were correctable under the supervision of a single, impartial state judge. Thus, even if the Florida Supreme Court's plan for a statewide recounting of ballots to discern voters' intent could be said to have launched a scheme under which the "weight" of some votes cast in Florida would in some sense be less than the "weight" of others, that would not by itself describe the sort of deviation that would suffice to invalidate - either conclusively or presumptively - a scheme designed to ensure the legality and completeness of the total vote count. Strikingly, under the Court's own equal protection theory, the vote count previously certified in Florida - a tally that, because of the Court's decision to stop the recount in its tracks, effectively determined the outcome of a Presidential election - would itself be a manifest denial of equal protection, in light of the many votes that remained uncounted, and the undisputed fact (common to virtually every statewide method of voting and manner of tallying votes) that the voting process and the vote-count itself included a dizzying array of arbitrary and/or easily correctable inequalities. I argue that the Court's failure to grapple with the underlying equal protection issues, or to grasp the breathtaking implications of its equal protection holding (including the inconsistency between that holding and the outcome that it endorsed in Florida itself), evince the almost embarrassing bankruptcy of the rationale that the Court's majority adopted and that Professor Lund defends. Part II argues that Bush v. Gore presented a question that most likely never should have been decided by a federal court. Properly applied, justiciability is inextricably linked both with the institutional context in which judicial intervention is sought (including the remedial character such intervention would have to take) and with the substantive constitutional principles that undergird the allegedly "political" question at issue. Unless it is demonstrable that the political and administrative process itself is so structured that the political branches cannot be trusted to abide by constitutional norms preventing an impermissible form of exclusion or dilution of an identifiable individual's or group's rights of political participation without adequate opportunity for timely correction within the process itself, the case for judicial intervention that pretermits the political process is extremely weak. There is thus a strong connection between the veritable culture shock set off by the Supreme Court's intervention in the presidential election of 2000 and the proper characterization of the Court's action as a violation of the implicit "political process" doctrine that has governed our national life without much interruption from the outset. The structure of the Florida Supreme Court's recount order of December 8, including the role it assigned to the state court judge in addressing alleged inequalities, left open numerous avenues for correcting procedural inequities in ballot counting. And the alleged inequities were so complicated and so attenuated that to argue that the U.S. Supreme Court had before it a completed constitutional harm notwithstanding what the Florida courts and legislature, followed by Congress, might have done, seems bizarre.
Laurence H. Tribe, Law Review, Letter to the Editor, 227 New Republic, Oct. 14, 2002, at 4.
Categories:
Legal Profession
Sub-Categories:
Legal Scholarship
Type: Article
Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L.J. 1259 (2002).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Military, War, & Peace
,
Separation of Powers
,
Executive Office
,
Supreme Court of the United States
Type: Article
Abstract
In this paper, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of peace as well as war, are to be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. We further explain why the specter of civilian habeas review will necessitate legislative involvement, and detail the significant equal protection problem with the Military Order.
Laurence H. Tribe, eroG .v hsuB: Through the Looking Glass, in Bush v. Gore: The Question of Legitimacy 39 (Bruce Ackerman ed., 2002).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Book
Laurence H. Tribe, Trial by Fury: Why Congress Must Curb Bush's Military Courts, 225 New Republic, Dec. 10, 2001, at 18.
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Executive Office
,
Military, War, & Peace
,
Supreme Court of the United States
Type: Article
Abstract
Analyzes U.S. President George W. Bush's order for establishing military tribunals for noncitizen terrorist. Criticism of the order; Extension of the tribunal's jurisdiction beyond "violations of the laws of war" to encompass violations of all "other applicable laws"; Fact that martial law and military tribunals have been held unconstitutional for civilians residing in the U.S. so long as the civil courts were open.
Laurence H. Tribe, eroG .v hsuB and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors, 115 Harv. L. Rev. 170 (2001).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Elections & Voting
,
Courts
,
Executive Office
,
Supreme Court of the United States
Type: Article
Abstract
My objective in this essay is to dispel the suspicion that Florida's highest court played fast and loose with the state's election statutes, while showing that in Bush v. Gore the U.S. Supreme Court acted in a manner wholly inconsistent with its constitutional responsibilities, whether viewed in terms of equal protection and due process or in terms of Article II; that the U.S. Supreme Court had no warrant to interfere with the political process as it did; but that its having done so was sadly of a piece with much that the Court has done in recent years. Part I sets the stage with a description of the lawsuits that culminated in Bush v. Gore. Part II demonstrates that the entire Article II issue that has so fascinated many commentators is a red herring and that observers on both sides have conjured an Article II problem where none really exists. Part III explains that the failing of the Chief Justice Rehnquist's concurring opinion for himself and Justices Scalia and Thomas is not that it asked an inadmissible Article II question, but that it gave an indefensible answer. Far from changing, breaking, or even bending anything in state law, the Florida Supreme Court was adhering faithfully to both the letter and the spirit of the statutory scheme that the Florida Legislature put in place and made applicable to presidential elections pursuant to its duty under Article II, Section 1, Clause 2. The image of a partisan state court run amok, which seemingly drove the Court's majority and continues to haunt its defenders, dissolves under close analysis, leaving in its place the straightforward picture of a workmanlike judicial tribunal doing its best, under trying and unprecedented circumstances, to apply an admittedly imperfect set of election rules. In light of the Florida legislature's acceptance of judicially supervised partisan struggle as a way to facilitate democratic choice; its explicit declaration that election officials are presumed to tabulate votes fairly in that partisan environment; its unequivocal embrace in 1999 of an increasing number of election contests and, thus, of more manual recounts; and its overwhelming preference for standards over rules in the election context, it is not the resolution of the Florida Supreme Court, but instead the model of resolution Chief Justice Rehnquist advances, that would have required the Florida courts to depart from the legislative scheme. Part IV demonstrates that the majority's equal protection holding invalidating the Florida court's remedial recount is completely without merit. The Court's "one person, one vote" doctrine cannot be understood to support the Court's substantive decision - at least, not without calling into question the constitutionality of the way votes have been counted in numerous statewide elections in our nation's history, including, most importantly, the official count of the votes in Florida that was certified by the Florida Secretary of State as a result of the Court's intervention in Bush v. Gore itself. Nor can the decision be explained by any newfangled equal protection doctrine, or by reference to procedural or substantive due process. Therefore one cannot escape the conclusion that Bush v. Gore rests on about nothing more than the simple intuition of a majority of the Court that Florida's procedures for deciphering ballots, common though they may be, just won't do because they offend the Court's own notion, more aesthetic than constitutional in character, of how ballots should be tabulated. Much of the remainder of the article is devoted to addressing the possible sources of the Court's unease about the "intent of the voter" standard under which similar looking ballots might be interpreted differently at different times and places, and demonstrating that the Court's unease either is constitutionally unwarranted or, if warranted, would point not to ending the recount but to invalidating the entire election, certainly in Florida and perhaps throughout the nation. The Court added insult to injury by denying the State of Florida the opportunity to remedy the defects that the Court identified - and, remarkably, the Court did so through an indefensible reading of Florida's own state law, which the Court implausibly claimed the Florida Supreme Court had construed to require an end to the vote - counting less than two hours after the Court issued its decision. Nothing in One can read the Florida statutes backwards and forwards without finding even the slightest clue that the state legislature ever decided that all recounts in a contested presidential election must stop by December 12 - at whatever cost. Worse still, reading the laws of Florida, as the Court did, to mandate this purchase of electoral security at the price of tossing out into the sea thousands of ballots, many of which clearly expressed the intent of the voters who cast them, would by the Court's own lights have been flatly unconstitutional. Part V shows that the Bush challenge to the recount presented a political question for resolution by Congress rather than a justiciable question for an Article III court. A court ordinarily need not and should not decline from considering a pre-election constitutional challenge to a state system for conducting presidential elections; but challenges to a state's actions in the course of a particular presidential election - challenges like this one that reach the Court so close to the election that it appears no decision other than one stepping on Congress's Twelfth Amendment toes seems possible - should be regarded as nonjusticiable. The Bush v. Gore Court simply but mistakenly took for granted its authority to weigh in and essentially to decide the presidential election. Moreover, the Court's stretching of the constitutional fabric was not necessary to protect the nation itself from being torn apart. Part VI explains why my critique of the Supreme Court's holdings does not presume partisan motives, arguing that what the Court did is perfectly understandable in terms of several unfortunate pathologies generally manifested in its recent jurisprudence. This Court exhibits a regrettable staggering belief that it alone is capable of confidence in its own ability to define and prioritize values of constitutional magnitude and decide which measures are needed to realize those values. High on that list of values is the preservation of a stable political order and of an appearance of regularity. Low on that list is an energized, politicized, unruly electorate struggling to find its way toward concrete outcomes in such forms as the election of a president. The Court's self-confidence in its own infallibility in matters constitutional is matched only by its disregard for the meaningful participation of other actors in constitutional debate. As many of the Court's recent decisions have demonstrated, the Justices in the Bush v. Gore majority have little but disdain for Congress as a serious partner in the constitutional enterprise, and not much patience with "We the People" as the ultimate source of sovereignty in this republic. Part VII discusses comments on the exceptionality of Bush v. Gore. Finally, Part VIII draws some lessons for the future, concluding that the real challenge is not to strip the Justices of their power but to expose and erase the flawed vision of our Constitution that has animated so many of their recent decisions and to reinvigorate the work of democracy in a way that can give the lie to that vision, inspiring the successors of today's Justices, if not them, to join in a more noble constitutional venture.
Laurence H. Tribe, American Constitutional Law (Foundation 3d ed. 2000).
Categories:
Constitutional Law
Type: Book
Laurence H. Tribe, Defining "High Crimes and Misdemeanors": Basic Principles, 67 Geo. Wash. L. Rev. 712 (1999).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Executive Office
,
Supreme Court of the United States
Type: Article
Laurence H. Tribe, Saenz Sans Prophecy: Does the "Privileges or Immunities" Revival Reveal the Future--or Expose the Hidden Structure of the Present?, 113 Harv. L. Rev. 110 (1999).
Categories:
Constitutional Law
Sub-Categories:
Fourteenth Amendment
Type: Article
Laurence H. Tribe, Pursuing the Pursuit of Happiness, 45 N.Y. Rev. Books, Sept. 24, 1998, at 30 (reviewing Charles L. Black, Jr., A New Birth of Freedom: Human Rights, Named and Unnamed (1997)).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Fourteenth Amendment
,
Supreme Court of the United States
Type: Article
Laurence H. Tribe, In Memoriam: William J. Brennan, Jr., 111 Harv. L. Rev. 41 (1997).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Laurence H. Tribe, Sticks and Carrots: The Doctrine of Unconstitutional Conditions, in Reason and Passion: Justice Brennan's Enduring Influence 123 (E. Joshua Rosenkranz & Bernard Schwartz eds., 1997).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Government Benefits
,
Biography & Tribute
Type: Book
Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Trade Regulation
,
Treaties & International Agreements
Type: Article
Abstract
As recent trade agreements such as NAFTA and the Uruguay Round of GAYT illustrate, it has become common for Presidents to submit major international agreements to both Houses of Congress for simple-majority approval, even though Article 11, section 2 of the Constitution provides for the President to submit treaties to the Senate for approval by two thirds of the Senators present. In a recent article in the Harvard Law Review, Professors Bruce Ackerman and David Golove recounted the rise of the "congressional executive agreement" as an alternative to the treaty form. In addition to arguing that use of the congressional-executive agreement is consistent with constitutional text, Professors Ackerman and Golove asserted that political events in the 1940s so altered the proper understanding of the Constitution that, despite the absence of any amendment in accord with Article V, the Treaty Clause of Article II became purely optional. In this Article, Professor Tribe challenges both of those conclusions and the free-form method of constitutional analysis that underlies them. He suggests that modes of argument that regard the Constitution's instructions for treatymaking and for constitutional amendment as merely optional are not genuinely constrained by what the Constitution says or by how its parts fit together. Such modes of argument instead embody major errors in what Professor Tribe describes as the "topology" of constitutional construction - errors that, in his view, disqualify approaches like those of Professors Ackerman and Golove from serious consideration as legitimate forms of interpretation. Focusing particularly on Professor Ackerman's notions of "constitutional moments" and "higher lawmaking" outside of Article V, Professor Tribe seeks to show that resort to extraordinary theories of constitutional change threatens to undermine genuine inquiry into the meaning of the Constitution's text. Accordingly, Professor Tribe calls for an unabashed return to rigor and precision in the interpretive process - for a commitment to take text and structure seriously.
Laurence H. Tribe, On the Edges of Life and Death, N.Y. Times Book Rev., May 16, 1993, at 1 (reviewing Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993)).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
First Amendment
,
Fourteenth Amendment
,
Religious Rights
,
Gender & Sexuality
,
Discrimination
Type: Article
Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution (Harv. Univ. Press 1993).
Categories:
Constitutional Law
Type: Book
Laurence H. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics, in The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics (Theodore L. Becker ed., 1991).
Categories:
Government & Politics
,
Technology & Law
,
Constitutional Law
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Science & Technology
Type: Book
Abstract
The book moves from a discussion of the relationship of physical and political theory to an explanation of the meaning of quantum politics. One thought experiment argues that all political perception is subjective.
Laurence H. Tribe, Abortion: The Clash of Absolutes (W.W. Norton 1990).
Categories:
Family Law
,
Health Care
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Reproduction
Type: Book
Laurence H. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics, 103 Harv. L. Rev. 1 (1989).
Categories:
Technology & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Courts
,
Science & Technology
Type: Article