“Gosh, there is so much stuff,” Laurence Tribe says, as I begin our interview in the library of his home in Cambridge with his partner Elizabeth on a chair beside him. And we are off to the races.
Tribe, 74, is Professor of Constitutional Law at Harvard Law School, and the United States’ preeminent constitutional law scholar. A.B., Mathematics, summa cum laude, Harvard College. J.D., magna cum laude, Harvard Law School. Carl M. Loeb University Professor, Harvard University. Lead counsel in 37 cases before the Supreme Court of the United States. Author of 12 books and more than 85 scholarly articles – including the most cited legal text or treatise of the 20th century, American Constitutional Law. Nearly a dozen honorary degrees. Constitutional consultant to the Marshall Islands, Czechoslovakia, Russia, and South Africa. And avid Twitterer, on occasion tweeting more than 20 times a day. Check him out at @tribelaw.
He is also, apparently, at war with the idea of resting on one’s laurels. I mean, gosh, he is working on so much stuff: A syllabus on constitutional silences for his seminar on Advanced Constitutional Law. A paper for a symposium about gaps and omissions in constitutions and discourse by Dublin courts. “Three or four beginnings” of books, including one called Constitutional Time Travel, on the “idea that the Constitution does not originate at any one point in time and it’s not interpreted at any one point in time. I compare it to looking at the night sky when you see stars and galaxies whose light comes to you from very different eras.” A “very exciting case about the separation of powers in Ireland,” but one that Tribe figures he is “not really free to discuss yet.” A pro bono case representing homeless veterans suffering from post-traumatic stress disorder. And then “some interesting other pieces of litigation that are taking up a good bit of time.”
“I didn’t know if you wanted to bring up the coal case,” Elizabeth interjects. There is certainly that too: the controversial case about the Environmental Protection Agency’s proposed climate change regulations pitting Tribe against his star research assistant, “friend, and former student” President Barack Obama. (Other former students include Chief Justice John Roberts, Associate Justice Elena Kagan, and Supreme Court nominee Merrick Garland.)
Some have portrayed the case as a battle pitting big coal companies and several dozen states against global efforts to combat climate change by reducing carbon dioxide emissions, but Tribe sees it as entirely about the power of an executive branch agency to take actions prohibited by Congressional law – in this case concerning electricity-generating power plants. But, with a major oral argument before the United States Court of Appeals for the District of Columbia looming on the horizon, Tribe declined to speak on the record about the legal issues or his reasons for reaching the conclusions he will be presenting in court.
Tribe has his roots as a mathematician. Whilst both proofs and cases are arguments – working from a set of premises to a conclusion – that is, in many ways, where the similarity between mathematics and law starts and ends. Where mathematics builds on foundational, axiomatic truths, jurisprudence – like any philosophy – finds itself unmoored in logical space.
The mark of a persuasive jurist, accordingly, is not only the capacity for valid argument, but a compelling approach to constitutional interpretation. The late Antonin Scalia, for instance, was famous for championing originalism, a method of interpretation ostensibly bound by the original meaning of the text.
But unlike Justice Scalia, Tribe has no convenient summary of his premises. “I’ve written too many thousands of pages about that for me to try to give you a capsule,” he says, “but I can tell you what they’re not. That is, I do not think that there is a method that will reduce constitutional jurisprudence to a mathematical algorithm at the end of whose application you can say QED.” He compares the question of original meaning to the problem of infinite regress: what is the original meaning of the Constitution? What is the original meaning of original meaning? “It’s like,” Tribe remarks, “the Bertrand Russell comment about turtles all the way down.”
“I do think,” he adds, “that taking text seriously and taking structure seriously is an obligation. That you can’t purport to interpret the Constitution without paying close attention to what it originally meant or at least the range of things it might have meant and to how one interpretation or another fits with other parts of the Constitution.”
“One context in which I’ve applied some of this,” Tribe says, “is the meaning of the natural-born citizen clause which was very important in the context of the abortive effort by Ted Cruz to become president of the United States.” Cruz is another former student, earning an A in Tribe’s Advanced Constitutional Law class – although not, it seems, great fondness from his former professor. (On Twitter, Tribe has called the Texas senator “a pompous… unlikable, self-centered ass”.)
“I think if he were true to his principles, Ted Cruz would agree that there just is no textually defensible way of interpreting the natural-born citizen clause the way you’d have to interpret it to make him eligible,” Tribe tells me. “On the other hand, that reading of the clause is in such deep tension with egalitarian and democratizing movements in constitutional understanding over the centuries.”
This leaves constitutional scholars in a bind. Whilst one proposed interpretation suggests that all those who are citizens at birth be eligible for the presidency, Tribe argues “that’s like jumping halfway across a chasm. The Talmud, I think, famously says that if you can’t jump all the way across, it doesn’t do any good to jump halfway across.” Why should someone who was born in the United States be able to run for president, but someone who immigrated at the age of two weeks not be able? “It’s just a crazy line and twisting the language in order to produce a halfway crazy but somewhat better solution just doesn’t make sense.”
Tribe’s solution: “I’ve proposed that Congress exercise its power to enforce the Fourteenth Amendment under Section 5 to, by statute, redefine natural-born citizen to include anybody who is a citizen at birth by virtue of any statute or anyone who becomes a citizen after birth. In other words, basically to obliterate” the clause. (Though precedents preclude such a radical use of Congressional power, Tribe thinks previous cases were wrongly decided.)
“The bottom line is,” he says, “I have a somewhat eclectic view of constitutional interpretation. I don’t think there is any clearly defensible path, any overarching method that is dictated by the Constitution. But I think certain values, like internal consistency, coherence with the rest of the document, coherence with the evolving understanding of the fundamental premises of the document, all consistent with not doing complete violence to language is the right way to go.”
“If you would like to change the Constitution in any way, this is the time to do it.”
Unfortunately, not an invitation: just the editor’s note on the bound galleys of the first edition of Tribe’s Constitutional Law Treatise. “This is the time to correct any typos,” he meant.
A funny anecdote, “but I’m not sure how I would actually have taken him up on it,” Tribe tells me. “Because I suppose, I mean, I’m rather satisfied with the way it’s written.” This is not necessarily the answer I had expected from the professor, who is unabashedly and passionately progressive, and has spent much of his career at the fore of the gay rights movement, amongst other liberal causes.
“I think that when you’re talking about changing something as fundamental as the Constitution,” Tribe explains, “it is important to think about what the process of change might put in train and not only what specific changes you would like. It’s a fantastic idea that anyone should have the ability to simply come in as a deux ex machina and change one phrase here or there. What you would have to do is unleash a process of changing the whole thing through a constitutional convention or something.
“And once that can of worms was opened I’m not sure I trust the populist impulse of the country enough to say, let’s just let the chips fall where they may. Which is why I am pretty conservative about proposed changes. For example, even though I thought there was a great deal wrong with the Supreme Court’s Citizens United decision, I am completely opposed to any of the current drafts of an amendment to get rid of it. All of which drafts I think would do more harm than good in other ways.”
Essentially, beware unintended consequences. Yet there is more, I believe, to why Tribe is conservative about changing the Constitution: that unlike jurists who hold a static understanding of the Constitution, he is deeply convinced of the ability for new truths to emerge from the document over time. Rights need not be enumerated, or even anticipated, to nonetheless be enshrined in the Constitution and its amendments – like the right to same-sex marriage, which was upheld by the Court in Obergefell v. Hodges (2015). In a November paper, Tribe argues that “Obergefell’s chief jurisprudential achievement is to have tightly wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity.”
“Liberty and equality are in some contexts in tension with each other,” Tribe says, when I ask him to explain what he means by the phrase. “Some versions of liberty are profoundly anti-egalitarian, some versions of equalization are quite hostile to freedom, but there is an area of overlap. There is a sense in which notions of equality, to have substance, have to take account of the substantive stakes, for individual, human self-realization, of disparities that involve stigmatization, subordination, and various forms of alienation.
“That is, I think equality with respect to the opportunity to get a decent education is more important than equality with respect to access to the best golf courses. Equality with respect to things that have to do with intimate human relationships, both bodily integrity, sexual intimacy, and enduring connection with another human being, is at the apex. And if I ask myself what is it that defines the difference between the peaks and valleys along that curve, it has something to do with the value of human dignity.”
Not dignity in the sense of dignitary – of superiority – but “dignity in the sense of a fundamental baseline that all people share,” Tribe tells me. “I don’t have a very crystal-clear way of specifying what it is. It’s not enough, however, to me to say that the Constitution contains no dignity clause, as Roberts said in his dissent in Obergefell. It doesn’t contain any privacy clause either; it doesn’t contain any clause about bodily integrity. But those are things that I think go without saying, that are taken for granted in our deepest traditions.”
If Tribe had another life, he is not so sure that he would be a lawyer again. A mathematician, perhaps, or a cosmologist. He might do well to consider political provocateur, instead: judging by his Twitter feed, Tribe has the potential to be an expert in the art, dressing his messages up in biting sarcasm and monkey emojis. On occasion, of course, politics and the Constitution can’t help but get tangled up – and when they do, Tribe doesn’t hesitate long to opine.
On the Senate’s refusal to hold nomination hearings: “I am particularly struck by how this could become a new normal. That is, we could get used to the idea of a somewhat paralysed court that works harder to duck questions, fail to decide issues, decide things by not deciding, kicking things down the road, of compromising dramatically. One of my colleagues whom I like and respect a lot, who was a former student of mine, Cass Sunstein, wrote a piece of which I am extremely critical. And that is this might be a blessing in disguise, because he’s often favored a minimalist judicial approach: decide no more than you have to decide, and if the current court becomes more modest in its resolution of cases because it has to find a least common denominator in order to get anything done with eight justices, than that is all to the good.
“But I think that that’s profoundly fallacious – it’s fallacious in the broadest sense, because sometimes it’s essential to resolve a question and the idea of simply ducking it is irresponsible.” Ever a fan of metaphors, Tribe compares the idea of the Supreme Court issuing less to a cessation of thunderbolts on mountaintop only for lightning strikes to hit more frequently on the hills. “The fact is that one is redistributing” the role of judiciary “from a place where it could be done responsibly and uniformly, to 11 different circuits, where it will be done haphazardly and with less accountability.”
“But the thing I want to emphasise,” Tribe adds, “is the precedent that is set: the idea that the Senate can simply tell the President, whose legitimacy it has doubted from day one, that his term ends, with respect to the most consequential function of naming justices, not after four years, but after three, is an outrage and it is something which we can’t live with. It is as though McConnell were to alert Donald Trump to the fact that if he wins, he is only winning a three-year term when it comes to justices of the Supreme Court. And that if in his fourth year a more liberal justice like Sotomayor suddenly leaves the Court, or someone else, or that he simply cannot replace that person. It’s crazy.”
On Justice Bader Ginsberg’s comments to the media: “It’s not that people have or, if they have, they certainly shouldn’t have, the illusion that judges have no political opinions. And the extreme to which some justices have gone in order to supposedly avoid having those opinions – like Justice John Marshall Harlan II, the grandson of the first Justice Harlan. He would make a point of not voting in national elections because he thought that would compromise his objectivity – I think that’s quite foolish. As Justice Scalia said on a number of occasions, a justice who is a tabula rasa and who doesn’t come to the court with pretty firm opinions on all kinds of matters, including the right approach to the Constitution, how do you resolve certain ideological issues, what are the lines between law and politics, is a judge who isn’t qualified to be a Supreme Court Justice.
“That said, I do think that it’s important to maintain a public distance from immediate partisan controversies, not so much because I agree with – I guess the image that comes to mind is Dostoevsky’s Grand Inquisitor, who took the view that the people need miracle, mystery, and authority, that otherwise all was lost – I don’t want to preserve some mythological idea of the Court as a purely dispassionate logic machine coming down from Mount Olympus with decrees that are unpolluted by reality. I don’t even think that that would be the kind of court we want. We want a Court that is immersed in reality. But we also don’t want a Court that is down and dirty, that gets into the mud with a Donald Trump or anybody else.”
On Trump encouraging Russia to hack Clinton’s emails: “The definition of treason, on the war branch, is for someone who owes allegiance to the United States to levy war against the United States. I’m certainly not claiming that Trump is levying war against the United States, but for him to encourage a nation – which is in many respects an adversary – to commit what is essentially cyber war, not only against a private citizen, but against one of the two major political parties, and thereby interfere with our quadrennial presidential election, is a pretty paradigmatic example of what a modern reading of the treason clause would mean.”
When Trump “says publicly, I think it would be great, I would hope that Putin would hack into the servers of the Democratic National Committee and of my opponent – when he says that against the backdrop of having said, I seriously consider recognizing Crimea as a place over which Russia has sovereignty, when he has basically coddled up to the Russian puppets in the Ukraine, both directly and through” national campaign chairman Paul Manafort, “that seems to me to be a pretty strong case of aiding and abetting and encouraging and soliciting the waging of a kind of warfare against the United States. I’m not actually recommending that he be prosecuted for treason. I think that’s a very scary thing and it reeks of the dangers of criminalizing politics, but I think that we underestimate the importance and the outrage of what he is doing if we don’t at least recognize its treasonous character.”
Justice is not perfect. It probably cannot ever become perfect – without a blink, Tribe lists off the rights of transgender, disabled, and undocumented individuals, the public defender system, and the criminal justice system as the next battles on his agenda. But reality pales in the face of philosophy. An advocate, in the broadest sense, is fighting for the cause of justice – so what, I ask Tribe, is justice?
“An idealised system of justice,” Tribe says, “would be one that everybody would be willing to live by if he or she didn’t know in advance where they would end up on the economic spectrum. It is a system in which the resolution of disputes would depend not on wealth, not on power, but on the neutral application of shared principles. And I think the ideal way of imagining such a system is: what would you do if you were designing it behind a veil of ignorance about where you are and where you come from?”
“My main hesitation about the Rawlsian construct is that it is a little too disembodied and abstract. The veil of ignorance is very nice but in fact we all do know who we are, and we therefore have to imagine what it would be like for people given that their situations are not those of ciphers with no identity, to design a fairer system. And that’s something, which if I had – well if I had several more lifetimes, I would be a mathematician or I would be a cosmologist, I don’t know that I would be a lawyer next time around – but if I had a whole bunch of lives and if I came back into the law, I would have quite an agenda left.”
Daniel Kodsi is a student at Oxford University. He is an editor of Oxford’s student newspaper, Cherwell, where this piece was originally published.
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