In it, Tribe attacked Justice Scalia for what he called a "caricature" of an argument in his Lawrence v. Texas dissent, and for the effect of Scalia's dissent in allegedly unleashing what Tribe called "bloodlust" from the "truly extreme Right," in particular, here at FreeRepublic.com.
This seems almost as nutty as Tribe putting down the Chief Justice for getting a less-than-perfect grade in con law 28 years ago (if anything, it makes Roberts more qualified for the job that he didn't quite understand all that nutty stuff Tribe was making up about the Constitution in the 1970s). Why attack Justice Scalia this way? Why attack us bloggers at FreeRepublic.com and encourage us to fire back with anything negative we can find on Tribe? Especially with all that "bloodlust" we have, here on the "truly extreme Right"? Seems like it's nuts to me.
You can watch a clip of Tribe going nuts on this here. You can read the FreeRepublic.com post that Tribe is quoting (or misquoting) here. What a nut! Enjoy.
Oh: Here's a text of Tribe's comments:
My point is to make clear what bloodlust from the truly extreme Right caricatures like Justice Scalia’s unleash, though this may not be his intention.I looked at a fairly typical website just after the decision in Lawrence, discussing Justice Scalia's point about how it was the allure of foreign law that somehow had misled his colleagues. A website called FreeRepublic.com.
And if you looked at it, you would have found people calling at the very least for the impeachment and removal of Justices Breyer and O'Connor, followed by their trial for treason.
The debate seemed not to be over whether they had done anything wrong, but whether impeachment and conviction was enough.
There were those who thought they should be "tarred and feathered."
There were opinions expressed that "these 'living Constitution' people are the death of the republic."
Somebody said the plot is to get Breyer promoted to Chief Justice and to bring Bill Clinton back as U.N. Ambassador. If that happens, this sage said, "you can be damn sure the time of the anti-christ will have begun."
Somebody said: "It's time we cleaned that snake pit out."
Published: November 21, 2004
The New York Times Book Review
To the Editor:
It comes as no surprise that Laurence H. Tribe -- who has spent his academic career litigating cases in the United States Supreme Court -- would not like my book, ''The People Themselves'' (Oct. 24). It is, after all, an effort to cast a skeptical eye on the claims of people like him to having a special say over constitutional law. I would, however, have expected something more or better from him than a caricature of my argument. Rather than reviewing my book, Tribe has written a common lawyer's brief, employing the sorts of tricks lawyers use to diminish a position they must attack: overreading, underreading or simply misreading complex arguments; taking snippets of quotations out of context; attributing contrived motives to an author or far-fetched consequences to a position; and so forth. No one doubts that Tribe is a good lawyer, and this stuff may be permissible in advocacy. It is, however, and for good reason, generally treated as inappropriate in serious debate.
The whole point of my book -- which is a work of history (though one might not know it from Tribe's review) -- is to show how the American tradition offers a richer understanding of constitutional law and politics than the choices Tribe presents: an understanding that renders unnecessary or unthreatening the sorts of resistance to authority Tribe misleadingly accuses me of encouraging, without at the same time requiring Americans to surrender control of their Constitution to a lawyerly elite. In Tribe's world, popular control over the Constitution is and, more important, should be only ''metaphorical.'' Ordinary citizens are entitled to have views and to seek to influence the course of constitutional law, but only by persuading their wise superiors on the court to change positions, or by waiting for justices to die or get tired of the job. We may criticize. We may implore. In extremis, we may amend. But beyond that, our duty is to defer.
What my book shows is that the founders of our country, and the generations that came after them, fought hard to avoid precisely what Tribe celebrates and deems necessary. Their system of constitutional politics made all three branches coequal participants -- leading and following, checking and balancing, representing and responding to arguments about the meaning of the Constitution. It did not depend on assigning one branch superior authority or a final say.
For Tribe, a system built on any foundation other than judicial supremacy ''takes the law out of constitutional law'' and ''erases'' the Constitution by turning it into ''a vessel into which the people could pour whatever they wanted it to contain at any given moment.'' Overheated rhetoric aside, our Constitution was self-consciously structured to prevent this. Not, however, by moving control wholly out of popular hands. Rather, our founders devised a system capable of sustaining a complex balance of forces within and without the government -- one that included courts -- designed to permit debate about the meaning of the Constitution while ensuring that, at the end of the day, an informed public opinion held sway.
Are there risks associated with this system? Absolutely: risks our founders and their successors fully understood. But the wonder of a democratic system is precisely how it places faith in the polity, and the wonder of our Constitution is how its authors found a way to empower that polity while avoiding the dangers that panic Tribe without cutting democratic deliberation off at the knees. There were, even in the beginning, those for whom the risks were too great: for whom the inevitable appearance of extreme views made overtly undemocratic checks necessary. For most of American history, theirs was a minority voice. Today, it is otherwise. But the debate goes on, and my book is meant to rejoin the argument by reminding readers of an older tradition in American discourse.
The most striking passage in Tribe's review comes at the end, where he writes that my book ''risks playing Pied Piper to a large and potentially impressionable universe of readers and students.'' There, in a nutshell, is the underlying sensibility to which my book objects. I believe readers and students capable of reading a book like mine and making up their own minds, particularly in a debate with those who hold Tribe's views (a very solid majority of legal commentators, I should add). But that debate depends on having both positions fairly presented and on encouraging discussion -- something Tribe's review manifestly does not do. Playing Pied Piper is the farthest thing from my mind. But, then, I respect my readers and students more than Tribe apparently does. His goal, it seems, is to scare them off.
Larry D. Kramer
Stanford, Calif.
A few years ago, Doris Kearns Goodwin refused to quit her post on Harvard’s Board of Overseers (Directors) after being caught plagiarizing rather obviously and later admitting it. But in the tradition of suspected Harvard plagiarists helping suspected Harvard plagiarists, Laurence Tribe himself (at this time a clean man) offered up his reasoning on why the standards that apply to students don’t apply to their famous professors:
I read with great sadness the editorial written by The Crimson Staff ("The Consequence of Plagiarism,” March 11) calling attention to the several inadequately footnoted phrases and passages drawn from a book by Lynne McTaggart, and from another two or perhaps three works, by the distinguished historian and public commentator, Doris Kearns Goodwin, in her 1987 book, “The Fitzgeralds and the Kennedys.” . . . The Crimson staff lectured Goodwin that “she has a long road ahead of her before she restores her credibility as an historian or journalist” and helpfully advised that her “first step should be resigning from the University’s oldest governing board,” its 30-member Board of Overseers. What utter nonsense!
To be clear, my sadness came not simply from the fact that I have known Doris Kearns Goodwin for decades and am proud to count myself among her friends as well as her admirers. Nor was I sad to see that Harvard undergraduates remain devoted to the highest standards of scholarly integrity and simple honesty; that devotion heartens me. Rather, I was sad to see how eagerly these bright young people piled on to heap self-righteous condemnation on a scholar whose too-close-paraphrasing of a few passages even the Crimson editors had to acknowledge was “unintentional". . . I was sad to see how mindlessly, to be frank, students of the college I attended and for which I still feel the greatest fondness were willing to mimic all these presumably sage elders–by overstating what Doris Kearns Goodwin did in being admittedly sloppy with her sources in a minuscule part of her truly extraordinary body of work a decade and a half ago. And I was sad to witness what seems to me the students’ lack of any real sense of proportion or, for that matter, much sense of decency.
. . . There can be no doubt that, unlike the student who turns in someone else’s work as her own and hopes the instructor won’t notice the cribbing–the student for whom the Harvard disciplinary rules to which the Crimson editorial referred were principally written–Goodwin, who cited the very sources she has been accused of not crediting, had not the slightest intention to deceive, to claim originality for thoughts that were unoriginal, or to appropriate another’s deathless prose in hopes that she might be credited with a literary gift that belongs in truth to someone else. . . .
. . . My only purpose here is to help set the record straight by speaking up, as one scholar who values his own integrity and reputation for meticulous attribution as much as anyone could, for one of the truly outstanding historians of our time . . .
. . . The Harvard Board of Overseers would be greatly diminished without her presence[,] and the students who undertook to judge her–as well as their parents–would be proud if one day they managed to achieve a fraction of what she has achieved, with as little sacrifice or compromise of their personal integrity.
Laurence H. Tribe
http://tinyurl.com/a6lct
I cannot tell you how proud I am to be a member of this extreme right. Tribe, the time for you America haters is drawing to a close. It must be tough on you. Keep ranting, we'll keep laughing.
Tribe is a blankety-blank!
Since when does the law apply to the left..... /sarcasm
The other time I faced off against Tribe was in 2000 in the Bush v. Gore case out of Florida concerning the Presidential Election. Tribe urged the Supreme Court to "affirm the Florida Supreme Court decision." I urged the Court to "strike the Florida decision from the record." The Court did exactly as I suggested (in Round I of that case) and did so unanimously. Tribe is a partisan for the Democrats, not a neutral expert. He feels, correctly, that he is under attack. And like a true lib-Dem, he attacks back not with facts or logic, but with ad hominum insults. I give him an "F" for intellectual achievement, here, and suggest that he rewrite his comments from the beginning.
John / Billybob