Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995).
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.