Tribe’s tribalisms

The invisible Constitution undergirds and pervades what most people understand the Constitution to be. When you look at the visible Constitution at the National Archives and draw the logical and linguistic inferences it supports, it doesn’t tell you very much about what matters in constitutional law.

~ Laurence Tribe, Harvard’s Carl M. Loeb professor of Constitutional Law.

Words mean things.

~ Rush Limbaugh, conservative intellectual

Harvard professor of constitutional law Lawrence Tribe has just released his latest book, “The Invisible Constitution” (Oxford Press, 2008). In this interesting but bizarre work, professor Tribe proposes the thesis that lines between the actual black-letter text, what Tribe calls “the invisible constitution,” is the actual Constitution.

Chicago attorney Michael O’Connell, on Bookforum.com, attempted a review of Tribe’s book that basically said he didn’t understand it, and as an epilogue he opined: Oh yeah, Justice Clarence Thomas sucks! O’Connell writes:

[The Supreme Court in the Printz v. U.S. case] first had to decide whether the word cruel means what the Founders regarded as cruel, or what seems cruel today, or simply what the dictionary says. While Clarence Thomas took the preposterous first view, he failed to acknowledge that the Constitution doesn’t command such literalist fealty.

To this uninformed opinion, I would counter: Mr. O’Connell, if one cannot glean an understanding and a means to interpreting the Constitution from the Founders, then to whom can we turn for guidance and enlightenment about what it actually means?

O’Connell doesn’t say, and Tribe is too subtle to let us know explicitly – but in reading Tribe for 20 years, I think I know. The oracles to tell the unwashed masses what the “invisible constitution” means are liberal judicial activist judges like Ginsburg, Breyer, Souter, Stevens (and often times Kennedy) whose judicial opinions are essentially a mockery of the original intent of the Constitution’s Framers.

You think I jest, dear reader, but O’Connell’s “book review” was less a book review and more a plea for help, because the reviewer had difficultly understanding Tribe’s opaque writing style. I hope I can fair better in this review.

When a seasoned detective is investigating a difficult murder case, often the police will round up “the usual suspects” to determine the logical path to take in solving a particular case. Likewise, before I do a book review, especially one by a scholar of such renown as Laurence Tribe, I usually endeavor first to read what others had written about the book.

Here, the usual suspects in support of Tribe’s book are:

Diane Feinstein, a very liberal feminist U.S. senator from California and former mayor of San Francisco;
Aharon Barach, chief justice of Israel, a very liberal justice of a foreign court whose perverted ideas of due process and equal protection frequently allow unrepentant, genocidal Muslim terrorists to go free, thus endangering the citizens of Israel;
Doris Kearns Goodwin, the quintessential liberal revisionist historian who first came to prominence by her Pravda-esque biographies of LBJ, FDR, JFK and other U.S. presidents;
Akhil Amar, a respected liberal constitutional law professor at Yale, now a visiting professor at Harvard. Clerked for Justice Stephen Breyer and a consultant for the liberal cult classic TV show “West Wing”;
Nina Totenberg, the quintessential liberal legal correspondent at National Public Radio who in 1991 tried desperately to scuttle the nomination of Clarence Thomas to the Supreme Court by outing Anita Hill to lie that Thomas sexually harassed her while employed at the EEOC. Her treachery thankfully failed, and Justice Thomas has since then distinguished himself as one of the most faithful jurists to the original intent of the Constitution’s Framers;
Scott Turow, popular novelist of the liberal left. He favors legal-themed narratives like the autobiographical cult classic for first-year law students, “One L” (1977).

Of course, neither myself nor Justice Clarence Thomas, Judge Robert Bork, John Whitehead, Michael Steele, Clint Bolick nor any other conservative jurist were asked by professor Tribe to do a review of his book or contribute a book jacket blurb. This is for two basic reasons:

First, Tribe and other liberal elites that love his judicial activism and his so-called “living constitution” legal philosophy considers conservative scholars persona non grata of the academy, because conservative legal philosophy pays credence first to the original Framers of the Constitution and to their original intent and ideas. To progressive academics at the Ivy League law schools and other top-tier schools across America, that view of the Constitution is like a cross in the face of Dracula.

Second, as a big shot Harvard law professor, Tribe, I am convinced, isn’t the least interested in having his ideas openly challenged in the arena of ideas, but to have his views of the Constitution affirmed, much in the same manner as a parishioner would accept or affirm the words read them out of the Bible by a minister from the pulpit.

You have heard the term “Obama Messiah”? Well, Obama was an acolyte to professor Tribe who is considered a demigod at Harvard throughout the academy.

I recently read that Obama, during his Harvard Law School years (1988-91), actually worked for professor Tribe as a research assistant on one of his books – “Abortion: The Clash of Absolutes” (1990). Early in Obama’s candidacy, Tribe even did a very congratulatory political commercial in support of his campaign.

Tribe’s judicial philosophy would be right up there with the most radical leftists of the Supreme Court, like Justices Ruth Bader Ginsburg, John Paul Stevens, Earl Warren, Harry Blackmun, William Brennan, Thurgood Marshall and many other enemies of the original intent of the Framers.

In an interview about professor Tribe’s book by Dick Dahl, which was posted on Harvard Law School’s website, Tribe further discussed his rather eccentric, New Age, countercultural understanding of the Constitution:

Tribe explains how the real power of the Constitution rests in what we don’t see but nevertheless accept as “constitutional.” He argues that, despite the textual silence of the Constitution on many of the issues we believe it addresses, the unwritten beliefs we have come to accept are as binding as if they were spelled out in the text.

Tribe further writes that the written Constitution “floats in a vast and deep – and, crucially, invisible – ocean of ideas, propositions, recovered memories, and imagined experiences.” Yet at a latter point in the interview Tribe seemingly contradicts himself, saying: “Calling it something mysterious like an aura or a shadow does it injustice,” he said. “It’s a set of fundamental beliefs and traditions that operate in a binding way. It’s a living body whose existence is impossible to deny.”

I’m confused, professor Tribe; which one is it? Is the Constitution’s text based on real, tangible, transcendent ideas, or on invisible, intagible, vague, unwritten, penumbral shadows?

Tribe’s book claims: “The invisible Constitution is not simply a mask for imposing a particular ideology on the Constitution, which is what people sometimes think.” … “What I’m hoping is that people will come to see that we’re all engaged in the same game and that the political reality of the Constitution, which is not confined to a written text, is an equal-opportunity reality.” I am not convinced.

On the contrary, I am convinced that Tribe’s latest book at its foundation is essentially a rehash of his long-cherished and perverted view of the Constitution as a “living constitution” – a document that can be manipulated at will by any liberal activist judge or justice on the Supreme Court for the common good to reach conclusions which in every respect are not only diametrically opposed to the original intent of the Constitution’s Framers, but antithetical to history, morality and America’s Judeo-Christian intellectual traditions.

As I have stated many times before, it’s not really difficult to understand what liberal jurists like Tribe, Goodwin, Justice Baruch, Amar, Totenberg, Turow, the propaganda media, the humanist academy or virtually any Democrat in Congress actually thinks about the Constitution’s Framers. I summed up their legal philosophy many times before in these three words – F- (Forget) the Framers!

What is especially galling to me as a budding constitutional scholar myself is that when I attended Harvard Law School in the late 1980s, just after Michelle graduated and concurrent with Barack Obama, we, as idealistic young students, really looked up to legal scholars like Tribe, Dershowitz, Ogeltree, Derrick Bell, Randall Kennedy, Martha Minow and others.

Tribe, in particular, being a Jew whose descendants were called “People of the Book” should realize better than anyone else the utter necessity of venerating and obeying the black-letter text of the Torah and the Constitution. Why?

The Constitution’s Framers explicitly followed that ancient Jewish moral tradition of canon veneration in creating the text of the Constitution by erecting its foundation squarely in the Judeo-Christian tradition of intellectual thought – transcendent words codified in black-letter text. Why did the Framers take this approach? They intended for the Constitution to endure through the ages.

Tribe’s antithetical, yea his almost nihilist view of the Constitution, however, looks suspiciously at moral considerations having any relationship with legal ones. That secular, positivist legal philosophy is self-evident in all of professor Tribe’s academic writings; it is evident in the cases he has argued before the Supreme Court as well as lectures and speeches he has given about the Constitution. At every opportunity, professor Laurence Tribe has repeatedly demonstrated a contemptible, visceral hatred of originalism jurisprudence, original intent, the ideas of the Framers, natural law and even America’s actual constitutional history.

In the final analysis, do we want people like Tribe on the Supreme Court, or will he do less mischief in his current capacity serving Kool-Aid (i.e., Marxist, socialist jurisprudence) masquerading as constitutional law to the legions of “intelligent” young law students at Harvard?

Admittedly it is a Hobson’s choice, but I choose the latter.

Ellis Washington, former editor at The Michigan Law Review and law clerk at The Rutherford Institute, is a graduate of John Marshall Law School and a lecturer and freelance writer on constitutional law, legal history, political philosophy and critical race theory. He has written over a dozen law review articles and several books, including “The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law” (2002). See his law review article “Reply to Judge Richard Posner.” Washington’s latest book is “The Nuremberg Trials: Last Tragedy of the Holocaust.”
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