Tribe’s Letters on His Treatise

Wednesday, May 25th, 2005 9:55 pm | Tom Goldstein | Print This Post

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Regarding Tribe’s open letter:

After the first few pages, my impression was that Tribe had a kind of Hegelian idea about theorizing, and that with a generally secular thesis being dominant in Constitutional law since the 70s and there now being a strong religious antithesis countering the secular thesis, that it would be impossible to arrive at any synthesis because the religious and secular are at bottom, irrconciliable. Hence, why pretend at any synthetic theorizing when none is possible. Better to just work out individual cases and separable constitutional problems, than to pretend there is anything like a synthesis that would make a treatise both possible and worth doing.

As I read further, it seemed clear to me that Tribe’s open letter is,in important part, confessional. He gives a very sympathetic description to both sides of the Terry Shiavo case, with much more sympathy to the point of view of her immediate family members than I would have expected, but which I believe is to his credit, since if one puts the politics aside, for parents to agree to terminate the life of a daughter, however hopeless her present and future may seem, is almost too much to ask, or to order.

Then, surprisingly to me, at the end of his open letter Tribe apologizes to Larry Kramer for his “overly reductionist dismissal” of Kramer’s “imaginative historical reconstruction” in Tribe’s recent review in The New Republic of Kramer’s book on popular constitutionalism, The People Themselves.

Tribe is perplexed, worried, and excited about the many movements and counter-movements that are occurring in constitutional law and in our nation’s politics. I think that he is being wise, and appropriately humble, in concluding that in such a time of upheaval and clashing values and theories that it would be presumptuous and wrong to pretend to some neat theoretical, synthesizing analysis of what is happening and where we are headed. Still, any writer of a treatise on anything has to face such difficulties to some degree or another. It may be that Tribe is actually reassessing the advisability of the treatise approach to law in general. The explosion of scholarship in legal theory and constitutional law and the explosion of religious and value based movements in law and public life may make the overarching treatise that actually sythesizes deeply antagonistic theories outdated. Such a treatise perhaps has always been an outdated concept. And, Tribe makes it clear that he will not be satisfied with a general reporting on and summarization of all the issues and movements that are afoot.

I found his open letter to be an excellent description of much of what is at issue in constitutional law, and it could have served as a preface to a larger book on these multiple and compelling issues, but that book would not have been what Tribe, deep down, wants to write. The book he wants to write can’t be written, he realizes that, and it is much to his credit that he has explained in confessional detail why he cannot.

Comment by Les Swanson — May 26, 2005 @ 6:33 pm