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Monday, May 23, 2005

A Dissent From the Opinion of Professor Tribe

As many law-blog types have no doubt already read, Professor Tribe has announced he will be setting aside, at least for now, his plans to publish the second volume of the third edition of his magisterial constitutional law treatise.  (For discussion, see, e.g., here and here.  Tribe's letter(s) explaining his decision can be found here.) 

I've quickly read Professor Tribe's discussion of his reasons for abandoning the project for now, and although I think I understand his reasons for doing so, I'm not quite sure.  The quick version -- expressed in a letter to Justice Breyer, who apparently had inquired as to the status of the second volume -- is that we are at "a fork in the road" on a variety of fundamental issues; that the current conflicts are especially heated; and that in these circumstances, a work that "organizes the corpus of decisional law -- that identifies, and reflects critically on, the major themes and directions of movement" -- is not appropriate or possible right now.  Or, to draw from his longer letter, "no treatise, in any sense of the term, can be true to this moment in our constitutional history -- to its conflicts, innovations, and complexities."  I suppose this is easy enough to understand; but it is a decidedly short version of his explanation, and I am still sorting through the longer version.

In any event, I think it's too bad that Tribe has dropped his plans to publish volume 2, and I wish (doubtless futilely) that he would reconsider.  Let me make a few points about his explanation. 

First, there is no doubt that there are any number of widely divergent points of view on constitutional methodology on the Court and in the academy right now, and that, at least where the courts and the political arena intersect, those debates are very heated at the moment.  So I am sympathetic.  But I wonder if Tribe is not too close to the maelstrom he describes.  Although the fissures may be particularly deep and evident right now, there is also a considerable amount of bridge-building across those fissures.  As Tribe himself notes, for instance, many scholars now pay closer attention to constitutional text and structure in their analysis.  Similarly, many scholars are more attentive to history, and more careful in their use of history.  In a host of other areas -- the use of foreign law being a prime example -- there is no doubt that the debate is still unresolved, but I think it is also true that the players in these contests at least are striving towards a common language in debating these issues.  In short, I do not think the times make a treatise impossible.  Indeed, in a host of areas involving individual rights, there is a substantial amount of consensus, whether right or wrong, that cries out for treatise-type treatment: I think in particular of the broad movement toward a speech- and equality-based vision of the Religion Clauses.

Second, I think Tribe overstates the extent to which a treatise was unproblematic in 1978, 1988, and 2000, when he published his other iterations of the treatise.  He suggests that the "deeper fissures" that Roe v. Wade occasioned "had not yet become so prominent as to demand central treatment -- or, more to the point, so prominent as to preclude unified treatment."  Maybe so in 1978, but was this true in 1988?  And were the fissures in the federalism debate not both prominent and unresolved in 2000, when he issued the structural half of the third edition of his treatise?

Third, I think Tribe conflates two different visions of treatise-writing itself.  One involves "organiz[ing] the corpus of decisional law" -- "identif[ying], and reflect[ing] critically on, the major themes and directions of movement."  I think the time is always ripe for such an endeavor -- not least at those times when the major themes and directions of movement are in flux, as they arguably are right now.  The other involves "propound[ing] a Grand Unified Theory" -- having "a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution."  These tasks are, of course, not necessarily the same.  But even if Tribe feels he has no such vision to contribute right now, I am not sure this task is as essential.  More to the point, even if a grand unifying vision that points to the future of constitutional law is inaccessible to Tribe right now, there is still room for a grand unifying vision that encapsulates this moment in time -- that shows how we have come to the end of certain roads and, perhaps, the beginning of others, that seeks to fix a dot on the map and say, this is where we are now.  That vision alone would contribute mightily to the next movements on the map.

Fourth, I think Tribe overstates the adequacy of the substitutes for his treatise.  I do not say this as a Tribe-ean acolyte; one can find an endless amount to disagree with in his treatise, whether one is a sworn opponent of Tribe or a friend.  But it is precisely the contestable nature of Tribe's treatise that makes it such a rich and valuable read.  No other major con law treatise comes close in richness to Tribe's work.  I regularly read the Nowak and Rotunda treatise for a fairly close reading of cases when prepping for class, but it often alternates between two much and too little detail, and its overall descriptive vision of constitutional law and methodology is, I think, lacking.  I read Chemerinsky's treatise even more often, and my students swear by it; but although it does a better job of synthesizing both the general structure of the law and the underlying issues in any given area, it is ultimately a fairly simple primer in the area.  If I truly want to grapple with an area -- to really confront and think through the deep issues -- I must turn to Tribe.  I miss the chance to do that with the individual rights materials right now, and so much has happened since 1988 in this area that would make Tribe's treatment particularly valuable.  Nor, I think, would Tribe's articles be an adequate substitute.  I think those works fill a different role and, to a substantial degree, are written in a different voice.  Although, as I say, Tribe's treatise often makes contentious arguments, it is not simply a work of advocacy; it does not just "push constitutional thinking in new ways," but engages in an act of real synthesis that necessarily involves taking stock of competing arguments and laying some groundwork for an over-all understanding of the field.

Fifth, although Tribe acknowledges the availability of "online" and "real time" constitutional law sources, he does not really acknowledge the changes in his own thinking about his treatise, or about how to make it available, that those technologies make possible.  This is true in a practical sense: if he does not feel he can issue a once-and-for-all statement about these issues, why not issue an on-line version of the treatise, subject to updates?  Indeed, if he does not want to commit to the labor involved in updating the treatise, why not take a page from Wikipedia and other online information sources, and make the treatise itself the beginning of an online, hypertexted, discussion, a group effort at synthesis?  No doubt other such methods of making the material available are possible, and I welcome comments on this point.

But this last argument is not true on just a practical level; it also invites him to think differently on a conceptual level about his treatise.  Why think of volume 2, or the third edition as a whole, as having to utterly capture and extend the vision of the Constitution at this moment in time, let alone into the future?  Why not acknowledge the transience of the enterprise -- a transience that is all the more apparent when publishing lead times have shortened and any number of contemporaneous reactions to events are now instantly available -- and publish, whether online or in print, even if the treatise cannot perfectly capture the moment, even if events are in the saddle?  I called Tribe's treatise magisterial, a label I think appropriate even if one disagrees with some or many elements of it.  But I fear the author is now a victim of the magisterial status of the work; I fear that he is experiencing a postmodern kind of anxiety of influence, with Tribe3 cowed by Tribe1 and Tribe2.  Perhaps this is a moment that defies magisterial treatment; but there is still much room, and need, for broad and deep synthetical work, even if it cannot point unerringly in one direction. 

Let me end on a more personal note.  Although, as I say, I am not a Tribe acolyte, I have greatly enjoyed and benefited from his treatise.  I confess that I am one of those individuals who, from the moment volume 1 of the third edition came out, harried every Foundation Press representative I could find for news of volume 2's release (sorry, folks).  I agree that Professor Tribe, having assumed the burdens of authorship, is not permanently obliged to his readership to keep the enterprise going forever.  Just the same, I now feel bereft.  I have never expected that the treatise could provide a grand unifying vision that truly could direct the movement of such a polyphonic work as interpreting the Constitution.  But I welcomed the chance to immerse myself in such a rich synthesis of the debate -- and such a rich contribution to the debate.  If the voice of the people can sometimes be enough to revive truly ephemeral television shows, perhaps Professor Tribe can yet be persuaded to make the second volume available, if only in an online form that recognize the necessarily transient nature of the work.  If Professor Tribe had simply tired of the work, I would award the laurel, swallow my disappointment, and be done with it.  But to the extent he bases his decision on arguments that I don't think obviate the need for or role of the treatise, I hope he can be persuaded to reconsider. 

Posted by Paul Horwitz on May 23, 2005 at 01:23 PM in Books, Legal Theory, Life of Law Schools | Permalink


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