Professor Tribe and the Constitutional Moment:

Laurence Tribe has announced that he will no longer be updating his one-volume constitutional law treatise, American Constitutional Law. Although I haven’t used Tribe’s treatise since law school, it has a well-established reputation for having been quite influential among judges over the last twenty-five years. As a result, Tribe’s decision is a bit of an event (at least in geeky con law circles).

  Professor Tribe certainly didn’t need to explain why he is no longer updating his work — treatises are not life sentences — but he did so in a long letter to his readers. The explanation is quite fascinating. As I read it, the gist is that treatises are historically contingent products. Tribe started writing his treatise in the 1970s to try to justify and rationalize the Warren and Burger Court’s work, including Roe v. Wade. At the time, writing a treatise made sense. But these days there is no recent revolution to have to analyze and explain. Further, if I understand him correctly, Tribe also reasons that the kinds of debates that are likely to shape constitutional doctrine in the next few years aren’t ones he is likely to be able to influence. (At least I think that’s what Tribe is saying; I wasn’t entirely sure whether he was arguing that many people today have views that simply can’t be reasoned with by anyone, or whether he was recognizing that he is viewed by many on the ascendant political right as too partisan to have his arguments taken at face value.)

  It’s a fascinating letter, and anyone interested in the state of constitutional law today should read it. It’s got lots of interesting tidbits, ranging from skepticism about claims of a “constitution in exile” movement (see p. 4) to questioning his 1991 position that the Courts should interpret the Constitution in light of technological change by simply “translating” the old doctrines to new ones (see footnote on p. 9).

  Thanks to SCOTUSblog for the news, and for hosting a copy of the Tribe letter forthcoming in The Green Bag.

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