Commentary on the last of the Tribe treatise
on May 20, 2005 at 2:39 pm
The grand project of Harvard professor Laurence H. Tribe’s synthesis of constitutional doctrine — his treatise, “American Constitutional Law” — may have seen its last entry. When the third edition of the work came out in 1999, it was to be a two-volume work. The second volume never appeared, and now Professor Tribe has notified the treatise’s immense public following that there will not be that volume — nor, apparently, any more in the future.
When “American Constitutional Law” emerged in the first volume in 1978, a truly ambitious enterprise had begun. Over the succeeding 27 years, the treatise has become standard reading material for anyone with even a half-serious interest in the subject, and has been cited and relied upon by the Supreme Court, lower American courts, and, increasingly, a number of foreign tribunals. Amid vast oceans of constitutional commentary, it has stood out as the most dominant wave.
Now, it is not so much that the professor has abandoned the project, as that he has concluded that the present flux in constitutional law would defeat any attempt to define a new synthesis worthy of his concept of a treatise on the subject. There can be no synthesis, he suggests, to give overall meaning to the “fissures,…profound shifts and tensions” in constitutional perspective now ongoing.
In a lengthy April 29 “open letter to interested readers” of his treatise (published in that elegant journal, Green Bag), Tribe has announced that he had “come to the sobering realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history — to its conflicts, innovations, and complexities.” His “sense” of what “treatise” means, he indicated, is a broad vision of constitutional law, with its varying parts and themes analyzed according to organizing themes — “a synthesis of some enduring value.”
At points in the “open letter,” Tribe seems to be suggesting that his decision to forego further work on his treatise is one that governs only for the foreseeable future. But at one point he declares, without qualification, that he has decided “to let the treatise I have written rest without publishing any further volumes or versions.”
The “open letter” itself is a fascinating account of how Tribe sees American constitutional law developing at the moment. He perceives that the Nation has come to a new “potential turning point” doctrinally, finding “ourselves at a juncture where profound fault lines have become evident at the very foundations of the enterprise, going to issues as fundamental as to whose truths are to count and, sadly, whose truths must be denied.” He adds: “I do not have, nor do I believe I have seen, a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution.”
Among the factors in the flux he identifies, Tribe notes “a sharp continuing debate addressing how the work of Congress fits within the corpus of constitutional law,” “the way in which constitutional protections of individual human rights are acquiring an international or transnational dimension,” “an ongoing explosion of inter-disciplinary scholarly effort,” and “the state of our own ‘constitutional culture'” in both academic commentary and in popular conceptions of constitutional law and the effect of those conceptions on politics. (His discussion of the recent Terri Schiavo case, the litigation over withdrawal of her feeding tube, will surprise many Tribe critics for its sensitivity to profound human feeling.)
“The profound divisions that define our current circumstance,” Tribe suggests, have not yet been fully grasped. A treatise done at this juncture, he argues, would simply paper over those divisions. He cites, for illustration, the closeness of recent Supreme Court rulings in major constitutional cases, and comments that he fears that “these sharp splits on the Court reflect a much more fundamental and seemingly irreconcilable division within legal and popular culture that is not amenable to the treatment that a treatise might hope to give such cases.”
There will, of course, be no retreat altogether by Professor Tribe from the arena of constitutional speculation, analysis and creativity. He will still litigate, write in public forums, testify before Congress, teach and write academically, he promises.
