Posted by Orin Kerr:
Professor Tribe and the Constitutional Moment:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1116737688
[1]Lawrence Tribe has announced that he will no longer be updating his
one-volume constitutional law treatise, American Constitutional Law.
Although I haven't opened Tribe's treatise since I was a law student,
it has a well-established reputation for having been quite influential
over the last twenty-five years. As a result, Tribe's decision is a
bit of an event (at least in geeky con law circles).
Professor Tribe certainly didn't need to explain why he is no longer
updating his work -- treatises are not life sentences -- but he [2]did
so in a long letter to his readers. The explanation is quite
fascinating. As I read it, the gist is that treatises are historically
contingent products. Tribe started writing his treatise in the 1970s
to try to justify and rationalize the Warren and Burger Court's work,
including Roe v. Wade. At the time, writing a treatise made sense. But
these days there is no recent revolution to have to analyze and
explain. Further, if I understand him correctly, Tribe also reasons
that the kinds of debates that are likely to shape constitutional
doctrine in the next few years aren't ones he is likely to be able to
influence. (At least I think that's what Tribe is saying; I wasn't
entirely sure whether he was arguing that many people today have views
that simply can't be reasoned with by anyone, or whether he was
recognizing that he is viewed by many by the ascendant political right
as too partisan to have his arguments taken at face value.)
It's a fascinating letter, and anyone interested in the state of
constitutional law today should read it. It's got lots of interesting
tidbits, ranging from skepticism about claims of a "constitution in
exile" movement (see p. 4) to questioning his 1991 position that the
Courts should interpret the Constitution in light of technological
change by simply "translating" the old doctrines to new ones (see
footnote on p. 9).
Thanks to [3]SCOTUSblog for the news, and for hosting a copy of the
Tribe letter forthcoming in The Green Bag.
References
1.
http://www.scotusblog.com/movabletype/archives/2005/05/commentary_on_t.html
2.
http://www.scotusblog.com/movabletype/archives/Tribe-Treatise-Green%20Bag%202005%20low%20res.pdf
3.
http://www.scotusblog.com/movabletype/archives/2005/05/commentary_on_t.html
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