Strengthening Constitutional Self-Government

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Professor Tribe's Will to Power

Since the Supreme Court will be hearing arguments about the constitutionality of Obamacare, it might be worth looking back at Lawrence Tribe's claim that there is a "clear case for the law's constitutionality."  Moreover, he takes a smart rhetorical strategy, flatterig the Court's conservatives for being above politics. Hence, he claims:

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is -- a political objection in legal garb.

But what can Professor Tribe mean that the case is "clear"?  To answer that question, we should turn to his other writings, particularly his Constitutional Choices, in which he writes:

Whenever I suggest in these essays, for want of space or of humility, that one or another decision seems to me "plainly right" or "plainly wrong," or that some proposal or position is "clearly" consistent (or inconsistent) with the constitution, I hope my words will be understood as shorthand not for a conclusion I offer as indisputably "correct" but solely for a conviction I put forward as powerfully held.

According to the good Professor, therefore, to assert that any constitutional case is clear, is to pound the table.

In fairness to Tribe, his claim may only be that the heath law is consistent with a chain of precedents that go back to the New Deal.  After all, Tribe believes in a "living constitution."  But, as we have noted before it might be time for Tribe to stop clinging to his horse and buggy constitution, and join the 21st century.

Categories > Courts

Discussions - 3 Comments

"According to the good Professor, therefore, to assert that any constitutional case is clear, is to pound the table."

Not exactly. Prof Tribe is a highly paid "expert", these experts hardly ever give away full analysis, even if and sometimes especially if they could do so in relatively clear language.

What should be understood about capitalism is that nothing is really "free", and Prof Tribe is an architect of american capitalism. The same general truth applies to president Obama or president Bush's justifications for war, on the one hand the case is "pounding the table", on the other hand some of the details are classified, or in the private sector "trade secrets/intellectual property". The full case is given in the "war room", and in bits in pieces to certain members of congress (even Pelosi, ended up knowing more than she wanted, and was actually legally sworn to secrecy.)

The broad idea of "powerfully held", which does a lot of work is essentially a distiliation and simplification of particulars, both cases and fact patterns.

One could say for example that the various restatements of law represent "powerfully held" convictions about what the law should be, or represent the majority opinion.

In some sense this idea of "powerfully held" is what makes up instruction at all or most law schools, that is to say law schools teach statutory law, but also common law, and common law may not be the actual rule of any one state, but the majority trend/opinion or "powerfully held" belief.

For example: In certain cases(rape), RI does not recognize the distinction between malfeance and nonfeance, a distinction necessary in the common law, for the "powerfully held" conviction that there is no duty to rescue.

The Penn State graduate assistant under Rhode Island law would have had a possible duty to rescue, and an actual statutory duty to report the rape to police.

But law schools generally do not teach actual practice or specific law narrowly tailored to specific fact patterns, but rather a more general sense of what the law is in a majority of states. "Powerfully held" thus means in general, and it doesn't always indicate correctness in specific circumstances. "Powerfully held" means quite bloody likely, or what experts think will happen... i.e. Mitt Romney will win the Republican nomination, Ron Paul has no chance, excetera.(which no one has yet explained, given that Ron Paul has the most internal consistency with the ideals of the tea party, and the "hyper lockeanism" of the republican zeitgeist, and perhaps also strangely some play with proggressives, and in my minority opinion some electability, albeit probably less than Romney.)

So "powerfully held" is pounding the table in some sense, but it is also a work of synthesis and a mechanism for editing or preserving the secrecy of work product.

Tribe may be out to persuade, and more evidence and detail may be required, but he is also an educator by proffesion. It is "powerfully held" then that he must ballance meeting the Will to power/ pounding the table threshold of the antagonistic blogosphere, against preserving his $1200 billable hour rate.

I would say that it is "powerfully held" that both Tribe, Obama and Bush will preserve "trade secrets/IP/ certain classified information" and sacrifice making the best argument for "free" (depending on how much they are paid for Op ed's and other contractual considerations).

Want of space or humility may also play a role, but a lot of it is preserving a distinction between what folks can get for free and what they must pay for, or what they need to know.

Where is the "like" button? Good post!

Thanks, Julie.

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