Tribe Takes On the “Inverted Constitution”

BY KATE RIGGS

Professor Laurence Tribe gives the ACS opening address.

Last Thursday, September 14, Professor Laurence H. Tribe presented an opening address for the American Constitution Society chapter at HLS. In a speech entitled “The Inverted Bush Constitution: From Executive Lawmaking and Presidential Signing Statements to Torturing Detainees and Spying on Ordinary Citizens,” Professor Tribe delivered remarks to a packed Austin North lecture hall. He began with opening remarks about the relevance of the ACS’s mission to address the current challenges in American law and policy.

“There is no question about the continuing significance of the ‘Inverted Constitution,'” Tribe remarked, citing that the roughly 850 days remaining in George Bush’s presidency is nearly as long as President Kennedy’s entire administration. He emphasized that the present administration’s vision of a unitary executive would have substantial long-term effects – naming the specific examples of lives lost fighting the war on terror, foreign relations, and the environment. In addition, he called to mind how the Supreme Court’s 5-3 opinion in Hamdan v. Rumsfeld would have been 5-4 but for Justice Roberts’ recusal. The implication was that the unlawfulness of programs such as the special military commissions for Guantanamo detainees hinge upon the vote of a single Justice – a Justice such as the 86-year-old John Paul Stevens.

The substantive focus of Professor Tribe’s remarks was two-fold. First, he addressed the National Security Agency’s warrantless wiretapping and secret surveillance program, recently held unlawful by a federal district court judge. Professor Tribe argued that officials have tried to spin the scope of the program to sound much narrower than it is in practice; rather than the claimed focus of listening in on known terrorists from other countries, the surveillance is much broader and can triggered by certain words. Surveillance can include “conversations with anyone from a foreign country who is suspected of having some connection with an organization believed to have a connection with international terrorism – all unreviewable and determined by the administration,” Professor Tribe said, likening it to a test of “six degrees of separation.”

He further criticized the idea that current proposed legislation, such as Senator Specter’s bill, would curb the scope of the program. Professor Tribe cited examples of the broad authority granted for warrant procurement under FISA and the provisions of the proposed legislation that expand exceptions and serve to effectively “white-wash the current program.”

The second topic addressed was that of presidential signing statements, the subject of a recent op-ed piece by Professor Tribe in the Boston Globe. He criticized the final report of the ABA Task Force that condemned the practice of presidential signing statements, arguing that the real issue is not the use of signing statements, but the sentiment expressed in them. The text of many such statements indicates intent not to follow the law being passed, due to its restriction on the executive branch. Tribe said he would rather know the President’s broad view of executive power, and that the view itself is what he finds troubling.

Finally, Professor Tribe used the example of signing statements to leave his audience – largely 1Ls who have yet to take Constitutional Law – with a directive. “It’s very important not to go after the latest target, when what you are objecting to is the substance and content, not the method or vehicle.” He argued that liberals should not object to Originalism, for example, but to what passes as the original meaning. The challenge for progressive constitutionalists, Tribe said, is to offer a positive vision for interpreting and understanding the Constitution and what the proper balance of power between the branches of government should be. His remarks concluded with the hope that the American Constitution Society – both nationally and at HLS – would work to address that task.

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