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Monday, March 14, 2005

Why Larry Tribe is a dangerous man

NRO's Ramesh Ponnuru points us to this online letter from Harvard Law Professor Lawrence Tribe, responding to Mr. Ponnuru's recent column suggesting that Prof. Tribe has been guilty of some self-promoting revisionist history.

I don't have anything particularly relevant or original to say about the merits of their dispute, but in reading Prof. Tribe's letter, the final sentence of this paragraph sent shivers down my spine (emphasis added):

That connection, one beyond a lawyer’s logic, impelled me to press, both orally and in my reply brief, the argument that even if the public’s right to see justice done was protected in so many words neither by the First Amendment’s “freedom of speech” nor by the Sixth Amendment’s right “of the accused” to a “public trial,” the “tacit postulates” of our system protected that right. The Ninth Amendment is among the reminders that those postulates count every bit as much as the text itself.

And there you have it in a nutshell, folks. Do you want your President to appoint, and your Senate to confirm, federal judges in the Larry Tribe mold — judges who believe that the "tacit postulates" they see fit to read into the Constitution "count every bit as much as the text [of the Constitution] itself"?

Say it with me now, reverently: "Tacit postulates!" By golly, now, that's something worth fighting a revolutionary war to create and a civil war to maintain, isn't it?

In algebraic terms, I wonder if this works out to TP = Cprime or instead to TP Cprime? I dunno, I never was much good at algebra.

But I'm damn sure "TP" is a variable.

Posted by Beldar at 07:39 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Why Larry Tribe is a dangerous man and sent a trackback ping are listed here:

» Please deliver us from these fools! from Media Lies

Tracked on Mar 15, 2005 8:53:06 PM

» "Look ma! New secret Constitutional provisions!" from GeoBandy

Tracked on Mar 18, 2005 12:59:59 AM


(1) carol herman made the following comment | Mar 14, 2005 8:57:26 PM | Permalink

Tribe is the reason you have to worry about the judge assigned to a case. If the two are friends, it doesn't matter how strong your case is; you are screwed.

On the other hand,when our Supreme Court heard the Bush 2000 arguments, Tribe stepped up to the Court, thinking Harvard always had the edge. And, Ted Olsen, the better thinker, bested Tribe.

Keep things fair and Tribe loses. Plus, I dunno what his letter means, do you know that? The accusation is that he plagerized stuff. And, now he says he's protected by the 9th? (Ah. If I only carried a Constitution with me. But I don't think the Constitution covers law professors who don't write their own stuff; but copy others without attribution.)

I also wonder what Justice Scalia would do to Tribe in a one-to-one?

(2) Neo made the following comment | Mar 14, 2005 9:44:24 PM | Permalink

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 9th Admendment has a history of being the last refuge of the weak and scoundrels. The weak because they have nothing else left, but the magnetism of the 9th Admendment to scoundrels is repeated throughout U.S. history, usually to those who have been true or falsely "repressed." The rest of us just live with it, without thinking.

To truly embrace the 9th is usually to embrace the radicals on both (maybe more) ends of of the political spectrum, from neo-Nazis to environ-terrorists.

Larry Tribe must be playing a really bad hand to revert to using the 9th Admendment.

(3) Boger made the following comment | Mar 14, 2005 10:31:34 PM | Permalink

Hold the phone. In effect Tribe is saying TP = 9A (he will claim 9A is where his TP's reside). The problem is, based on what, can you say he is wrong? Doesn't the open-endedness of 9A make his argument for a TP under 9A as competitive as yours against? Your heartburn is tantamount to rejecting the constitutional wisdom of 9A, ie the framers blew it on this one. Hence stand up and be counted: You are a delegate to a Constitutional Convention in 2007. Are you going do all in your power to excise 9A from the new Constitution? How say you, yeah or nay?

(4) Milton made the following comment | Mar 15, 2005 10:01:43 AM | Permalink

Meh, Beldar. IMO, this terse post really doesn't do justice to the deep debate over the proper role of the 9th Amendment in constitutional interpretation. Respectfully, I don't think it does justice to this debate by simply characterizing Tribe's position on it as one that makes him a "dangerous man." There are plenty of "dangerous men," more than few of them both jurisprudentially and politically conservative, who think that a more expansive reading of the Ninth Amendment is proper. They may be wrong, but I don't think this post does justice to the existence of a fascinating, important constitutional debate. JMO.

(5) Dennis made the following comment | Mar 15, 2005 11:25:00 PM | Permalink

Gotta love those guys that can discern them emanations of penumbra! Could I have mine with extra nuts?

(6) Carol Herman made the following comment | Mar 16, 2005 10:26:20 AM | Permalink

Okay, I'm assuming that the 9th says "everything not given to the Feds, or the States, belongs to the People." I'm assuming this; because this is not a test. And, I'm too lazy to look it up.

But IF our Founding Fathers, familiar as they were with Parliaments, went this route, instead; one of the things they must have observed about parliaments, is that the extremists control.

I wouldn't have known this at all, except that my hair stands on end when I watch Israel's governments, cobbling together various groups, and I can't figure out who the hell they're representing! Sorree. But where's the middle?

You know, I never felt threatened, as an American citizen, that minority rights could be protected at the expense of what the majority wants. By the very nature of "popular" and "mobs" something has to sit there protecting innocents.

Maybe, where there's now so much confusion among lay people (like me, too) ... is the fact that I want to see 'RIGHTS' EXTENDED TO ALL. But not special rights! In other words, RIGHTS, by their very definition, should have built in to it, the fact that you can't attack people whose religion doesn't match yours. Or who are gay. Handicapped. Or different.

Okay. So, what if someone argues back that a ramp into a building works only for those in wheelchairs? REALLY? I climb up them. Am I supposed to get a ticket from a cop for my using ramps over stairs? I don't think so.

RIGHTS EXTENDED TO ALL, WORKS. When the test fails, you see rights being given away like prizes to extremists.

And, ya know what? I think our Constitution says that's how the 9th works.

Tribe's an idiot. Good that he's proving this OFF the bench! Good that he's showing Hahrvahrd to be a CRAP HOUSE! And, their one good man, Lawrence Summers, who may be going down; will remind future generations of how at Hahrvarhd "learned" men and women, weren't. And, they are re-destroying Socrates.

Don't just just hate it when who gets miffed at her jury summons' just pipes up?

(7) snellenr made the following comment | Mar 16, 2005 10:36:10 AM | Permalink

Why introduce a new concept of "Tacit postulates" when you could simply apply the "penumbra" that Douglas discerned in Griswold?

(8) Kevin made the following comment | Mar 16, 2005 9:52:24 PM | Permalink

I once had a bad case of tacit postulates, but a 10-day course of Keflex cleaned them right up.

(9) Karl Maher made the following comment | Mar 17, 2005 4:04:34 PM | Permalink

I had a tacit postulate once, but a doctor lanced it. Which is what I think we need to do to the federal judiciary.

(10) GeoBandy made the following comment | Mar 18, 2005 12:16:36 AM | Permalink

It should be manifestly obvious to all that what is not written in the Constitution makes it clear that a plethora of tacit postulates may be found within the penumbra cast by any word or phrase which is written in the Constitution. Provided some nitwit wearing a black robe (or standing in front of a law school classroom) is desperate - and arrogant -enough to make it up.

(11) Carol Herman made the following comment | Mar 18, 2005 11:20:02 AM | Permalink

You know, I can draw Venn Diagrams with the best of them. They're still circles.

On the other hand, STRATEGY is an art practiced at the highest levels. At least, practiced where it can be applied. And, then results are judged.

Given that our president is Conservative. And, in politics you need to make "deals," as well as convince, through your bully pulpit, that most Americans should feel proud to support your working American STRATEGY; what I'm beginning to recognize is that in order to draw support for his positions, everything Bush does has a purpose. It's even easy to read.

So, too, I'll add the grab bag of Congressional representatives. They're not hard hats. They can't attack positions with bulldozers. Or missiles. Perhaps, saying they're 'like surgeons' would be a good analogy; because Dr. Frist happens to be one.

Bush and his team also recognize SIGNALS, rather than noise, that comes out from the public's viewss. And, Terri Shiavo's case is a good case in point. Life and death? Any different than abortion? Given that she can't get out of bed and phone for representation, herself, well, neither can a viable fetus.

Like I said, draw all the circles that you want to draw. Lawrence Tribe happens to come from what I might call "FDR'S" Camp. One that was set up during FDR's presidency, itself, when he wanted to move the Court towards his New Deal. And, as popular as he was, he couldn't. (But, then he could.) Given that he had four terms. And, lots of opportunities to make appointments; he shifted the Court's philosophy more towards the New Deal, than even center court.

A new team has come out to play. The old-timers want to continue doing just what they've been doing (through political appointments, and tossing out brilliance as one qualification to sit on the Big Bench.) Of Course, Scalia is brilliant! But in the world of circles, his appointment was a fluke.

Not so, how GWB moves. Isn't it wonderful that you can STRATEGIZE in his position?; you can see it's all obvious, stuff, too? And, yet, he's racing ahead unimpeded. (Well, I've got a football analogy here. And, ya know what? Coaches also draw lots of circles. Filling them inside ... as well las outside ... with a lot of "x's." So, I'm not so far off with my analogies, ya know.

Ah. And, I hate technical language, when simple language will do.

So, let me repeat myself, and tell you what I see coming out of our 9th Amendment. Which gives all those powers not assigned to other circles, to the PEOPLE. This gives the People RIGHTS. But you can stick an umbrella over it, and still get to see that if you use it only for those rights that makes the extremists happy, and then crap on everybody else, it's not a RIGHT you're giving away; but a privilege. Dammit, but the Document isn't in the business of giving coupons for extremists to shop their wish lists. Why not? Because all religions are separated from the secular universe. BINGO. You can draw a circle around this and take it to the bank.

(12) Greg made the following comment | Mar 21, 2005 1:37:52 PM | Permalink

"But I'm damn sure "TP" is a variable."


(13) El Jefe Maximo made the following comment | Mar 23, 2005 4:20:51 PM | Permalink

"Tacit postulates" sounds so much better then that "penumbra" thing of Justice Douglas. If Prof. Tribe wants to make it up as he goes along (much like Justice Douglas), at least he has better nomenclature.

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