America's constitutional narrative

Daedalus

Volumn 141, Issue 1, 2012, Pages 18-42

  Tribe, Laurence H ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84856162941     PISSN: 00115266     EISSN: 15486192     Source Type: Journal    
DOI: 10.1162/DAED_a_00126     Document Type: Article

References (182)

1. Dahlia Lithwick, "Constitutional Whitewash," Slate.com, January 6, 2011, http://www.slate.com/id/2280249/.
2. Laurence H. Tribe, The Invisible Constitution (Oxford: Oxford University Press, 2008), 64.
3. West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
4. Tribe, The Invisible Constitution, 72.
5. Tribe, The Invisible Constitution, 73.
6. Jack M. Balkin and Sanford Levinson, "The Canons of Constitutional Law," Harvard Law Review 111 (1998): 963, 987.
7. Jack M. Balkin and Sanford Levinson, "The Canons of Constitutional Law," Harvard Law Review 111 (1998): 963, 987
8. On that interplay,
9. Lewis H. LaRue, Constitutional Law as Fiction: Narrative in the Rhetoric of Authority (University Park: Pennsylvania State University Press, 1995).
10. Tribe, The Invisible Constitution; Akhil Reed Amar, America's Unwritten Constitution (New Haven, Conn.: Yale University Press, forthcoming 2012).
11. For a powerful argument about the distinct roles of the Constitution as fundamental law, higher law, and our law-and about how an approach to constitutional interpretation that the argument's author describes as 'framework originalism' enhances the Constitution's ability to serve those three roles.
12. Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Cambridge, Mass.: Harvard University Press, 2011).
13. Jack M. Balkin, Living Originalism (Cambridge, Mass.: Harvard University Press, 2011).
14. For a canonical statement of this position,
15. Antonin Scalia, "Originalism: The Lesser Evil," University of Cincinnati Law Review 57 (1989): 849.
16. To take one example, although the Fourth Amendment's prohibition on 'unreasonable searches and seizures' remains fixed as a matter of constitutional text, the doctrines through which courts have applied that prohibition have changed dramatically across time. Thus, even though the notion of a 'search' had been historically tied to physical trespass, the Supreme Court recognized the implications of rapidly changing technology when it held in Katz v. United States that the government had breached the Fourth Amendment's protections by electronically eavesdropping on a public pay phone. See 389 U.S. 347 (1967). It thus overturned prior holdings limiting 'searches' to physical intrusions and instead explained that a 'search' occurs whenever there exists a 'reasonable expectation of privacy.' This test, which still constitutes the threshold for determining whether a 'search' has occurred, permits doctrine to evolve with changing social circumstances. So, too, in Kyllo v. United States, the Court held that the use of a thermal imaging device to detect the amount of heat emerging from a home constituted a 'search' even if the law enforcement officer using the device never entered the property being searched. See 533 U.S. 27 (2001).
17. David A. Strauss, The Living Constitution (Oxford: Oxford University Press, 2010), 24-25;
18. Adam M. Samaha, "Dead Hand Arguments and Constitutional Interpretation," Columbia Law Review 108 (2008): 606, 613-627;
19. Michael Klarman, "Anti-Fidelity," Southern California Law Review 70 (1997): 381.
20. V. Brown, 381 U.S. 437 (1965).
21. Laurence H. Tribe, American Constitutional Law, 2nd ed. (Mineola, N.Y.: Foundation Press, 1988), 656-658.
22. The first edition of this treatise was published in 1978, the third edition in 2000. Subsequent citations will note the relevant edition.
23. John Hart Ely, "Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause," Yale Law Journal 72 (1962): 330.
24. Laurence H. Tribe, "Comment," in A Matter of Interpretation: Federal Courts and the Law, ed. Antonin Scalia (Princeton, N.J.: Princeton University Press, 1998), 68-71.
25. Laurence H. Tribe, "Comment," in A Matter of Interpretation: Federal Courts and the Law, ed. Antonin Scalia (Princeton, N.J.: Princeton University Press, 1998), 68-71
26. Michael C. Dorf, "The Aspirational Constitution," George Washington Law Review 77 (2009): 1631.
27. Tribe, American Constitutional Law, 3rd ed., 24.
28. Tribe, The Invisible Constitution, 145-148.
29. Tribe, The Invisible Constitution 149-154.
30. U.S. Const., amend. XI ('The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State'). I should concede that at least one scholar disagrees.
31. Michael Stokes Paulsen, "Does the Constitution Contain Rules for its Own Interpretation?" Northwestern University Law Review 103 (2009): 857.
32. I made a similar point in the first edition of my treatise.
33. Tribe, American Constitutional Law, 1st ed., 15.
34. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven, Conn.: Yale University Press, 1998).
35. Dorf, "The Aspirational Constitution," 1647-1649.
36. This point was vigorously disputed in a debate between Justice Scalia and me in the mid-1990s.
37. Scalia. ed., A Matter of Interpretation, 37-47, 65-94, 133-143.
38. Justice Stephen Breyer has championed a form of such 'living constitutionalism' from his seat on the Supreme Court, arguing that the Constitution operates as a living instrument designed to secure American democracy through a judicial process that applies unchanging constitutional values to evolving circumstances.
39. Stephen Breyer, Making Our Democracy Work. A Judge's View (New York: Knopf, 2010).
40. In 1991, Michael Dorf and I published a book in which we credited Barack Obama and his classmate Robert Fisher with the metaphor of "constitutional interpretation as conversation";
41. Laurence H. Tribe and Michael Dorf, On Reading the Constitution (Cambridge, Mass.: Harvard University Press, 1991), 31 n.1. Obama continued to develop the image in his book The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Crown, 2006), 92.
42. Tribe, American Constitutional Law, 3rd ed., 23-24. I argue that the 'Constitution provides the basic language through which [our] institutions direct and challenge one another and the society at large and through which the people in turn contest the actions of those institutions.'
43. Michael Dorf and I explored this notion in our book On Reading the Constitution, entitling the second chapter of that book 'Structuring Constitutional Conversations.' This represented a refinement of my prior work. In the years since, others have elaborated on the conversation metaphor in powerfully illuminating works of their own.
44. Balkin, Constitutional Redemption; Lawrence Lessig, "Fidelity in Translation," Texas Law Review 71 (1993): 1165;
45. Akhil Reed Amar, America's Constitution: A Biography (New York: Random House, 2005).
46. Jed Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law (Cambridge, Mass.: Harvard University Press, 2005).
47. Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government (New Haven, Conn.: Yale University Press, 2001).
48. For my negative answer to that question-an answer some certainly dispute-see Laurence.
49. H. Tribe, "A Ceiling We Can't Wish Away," The New York Times, July 7, 2011, http://www.nytimes.com/2011/07/08/opinion/08tribe.html.
50. H. Tribe, "The Constitutionality of the Debt Ceiling and the President's Duty to Prioritize Expenditures," Balkanization blog, July 16, 2011, http://balkin.blogspot.com/2011/07/constitutionality-of-debt-ceiling-and.html.
51. For example, in the midst of the recent debate over the constitutional legitimacy of unilateral executive action to borrow money in defiance of a statutory debt limit-legitimacy that its proponents attribute (I believe mistakenly) to the Public Debt Clause of the FourteenthAmendment-legal scholar Mark Tushnet went so far as to insist that 'THERE IS NO 'FACT OF THE MATTER' on whether a constitutional argument is good or bad, as there is about the shape of the world. Constitutional arguments are good if there's enough political wind behind them to make them plausible/credible/winning among relevant audiences, bad if they don't pass the plausibility threshold among those audiences'.
52. Mark Tushnet, "Opinions on the Shape of the World Differ," Balkanization blog, July 1, 2011, http://balkin.blogspot.com/2011/07/opinions-on-shape-of-world-differ.html.
53. Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge,
54. Mass.: Harvard University Press, 1988), 61-62.
55. Justice Kagan recently reminded us of this fact in her elegant dissenting opinion in Arizona Free Enterprise Club v. Bennett, 131 S. Ct. 2806, 2829 (2011) (Kagan, J., dissenting). Responding to the Chief Justice's observation that 'campaigning for office is not a game' (ibid., 2826 [Roberts, C.J.]), she states, 'truly, democracy is not a game'; ibid., 2846 (Kagan, J., dissenting), emphasis added.
56. U.S. Const., art. I, sec. 3. Indeed, our inability to construe away or work around this provision and others like it, and its alleged consequence of sabotaging American democracy, has led legal scholar Sanford Levinson to call for a new convention at which the Constitution could be entirely rewritten. See Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (New York: Oxford University Press, 2006).
57. Tribe. The Invisible Constitution, 120-121.
58. Jack M. Balkin, "Abortion and Original Meaning," Constitutional Commentary 24 (2007): 291.
59. Robert Nozick, Invariances: The Structure of the Objective World (Cambridge, Mass.: Harvard University Press, 2001), 3;
60. Robert Nozick, Philosophical Explanations (Cambridge, Mass.: Harvard University Press, 1981), 5, 13-15, 19-21, 23-24.
61. Hannah Arendt, Men in Dark Times (New York: Harcourt, Brace, 1968), 8.
62. Laurence H. Tribe, "Ways Not to Think About Plastic Trees: New Foundations for Environmental Law," Yale Law Journal 83 (1974): 1315, 1326-1327;
63. Laurence H. Tribe, "Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality," Southern California Law Review 46 (1973): 617;
64. Laurence H. Tribe, "Policy Science: Analysis or Ideology?" Philosophy & Public Affairs 2 (1972): 66.
65. This conception of the Constitution has been elegantly developed in new and fascinating directions by several recent commentators. See generally, sources discussed in notes 25-27.
66. Strauss, The Living Constitution.
67. Brown V. Entertainment Merchants Association, 131 S. Ct. 2729 (2011).
68. Tribe, The Invisible Constitution, 172-180 (discussing geodesic construction of the Constitution); Richard H. Fallon, Implementing the Constitution (Cambridge, Mass.: Harvard University Press, 2001).
69. Indeed, Justice Breyer has recently published a theory of constitutional and statutory interpretation that boldly tasks the Court with an ongoing mandate to "make our democracy work" by grappling pragmatically with the challenges posed by an ever-changing world.
70. Breyer, Making Our Democracy Work.
71. Leonard Levy, Emergence of a Free Press (New York: Oxford University Press, 1985).
72. Constitutional historian Leonard Levy notes that the 'conduct of the American revolutionists usually conformed with the maxim inter arma silent leges [in times of war the laws are silent].... [S]peech and press, therefore, were not free during the Revolution'; ibid., 173. Historian Forrest McDonald describes the Framers as 'divorced from substantive reality' and notes that 'no public figure in America during the 1780s expressed a view of freedom of thepress that differed in any substantial way from the views of Blackstone and Holt'.
73. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985), 49-50.
74. Keith Jenkins, "The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence," The American Journal of Legal History 45 (2001): 154;
75. Levy, Emergence of a Free Press, 307-338;
76. James Morton Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y.: Cornell University Press, 1956);
77. John C. Miller, Crisis in Freedom: The Alien and Sedition Acts (Boston: Little, Brown, 1951).
78. Michael Kent Curtis, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History (Durham, N.C.: Duke University Press, 2000);
79. Clement Eaton, "Censorship of the Southern Mails," American Historical Review 48 (1943): 266.
80. William Lee Miller, Arguing About Slavery: John Quincy Adams and the Great Battle in the United States Congress (New York: Random House, 1995).
81. Helen Horowitz, Rereading Sex: Battles over Sexual Knowledge and Suppression in Nineteenth- Century America (New York: Random House, 2002);
82. David Rabban, Free Speech in its Forgotten Years (Cambridge: Cambridge University Press, 1997);
83. Margaret A. Blanchard, Revolutionary Sparks: Freedom of Expression in Modern America (New York: Oxford University Press, 1992);
84. Paul Murphy, World War I and the Origin of Civil Liberties in the United States (New York: Norton, 1979).
85. Mark Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991).
86. Harold Nelson, ed., Freedom of the Press from Hamilton to the Warren Court (Indianapolis: Bobbs- Merrill, 1967), 31.
87. Schenck v. United States, 249 U.S. 47 (1919); and Debs v. United States, 249 U.S. 211 (1919).
88. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
89. Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting) ('[T]he ultimate good desired is better reached by free trade in ideas.... [T]he best test of truth is the power of thought to get itself accepted in the competition of the market.... That at any rate is the theory of our Constitution'); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (recognizing 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open').
90. National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).
91. Anthony Lewis, Freedom for the Thought We Hate: A Biography of the First Amendment (New York: Basic Books, 2007).
92. American Booksellers v. Hudnut, 771 F. 2nd 323 (7th Cir., 1985).
93. United States v. Stevens, 130 S. Ct. 1577 (2010).
94. Snyder v. Phelps, 131 S. Ct. 1207 (2010).
95. Snyder, 131 S. Ct. 1229 (Alito, J., dissenting).
96. New York Times Co. v. United States, 403 U.S. 713 (1971).
97. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
98. Dennis v. United States, 341 U.S. 494 (1951).
99. Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010).
100. Kathleen Sullivan, "Two Concepts of Freedom of Speech," Harvard Law Review 124 (2010): 143.
101. Citizens United v. FEC, 558 U.S. 08-205 (2010). In Citizens United, the Court reversed several precedents-and more than a century of legislative enactments reflecting a concern with the influence of corporate power in elections-to strike down provisions of the Bipartisan Campaign Reform Act that prohibited unions and corporations from spending funds from their general treasuries, as opposed to more heavily regulated political action committees, on electioneering communications. The effect of this decision was to allow unions and corporations to spend substantially more on elections, which prompted widespread and high-profile concern about the resulting potential for capture and corruption and for the erosion of meaningfully democratic self-government.
102. Arizona Free Enterprise Club v. Bennett, 131 S. Ct. 2806, 2829 (2011). In Bennett, the Court held that Arizona's matching-funds scheme, which provides additional funds to a publicly funded candidate when expenditures by a privately financed candidate and independent groups exceed the funding initially allotted to the publicly financed candidate, substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny.
103. Bennett, 131 S. Ct. 2830 (Kagan, J., dissenting) ('The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the 'opportunity for free political discussion to the end that government may be responsive to the will of the people.' I therefore respectfully dissent' [internal quotation omitted]).
104. Legal scholar Cass Sunstein accordingly argues that many of the Court's decisions protecting spending on speech, especially by corporations but not exclusively so, make the same mistake as did the infamous decision in Lochner v. New York-which struck down a New York law regulating workplace and employment conditions in bakeries, and which has since become a canonical example of the Court wielding its power of judicial review to impose libertarian economic assumptions-in treating the 'free market' as though it were the product of nature rather than of law. See Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1995). Although he sometimes takes these arguments further than I would, I am sympathetic to the general point and sketched a similar argument in my 1985 book Constitutional Choices.
105. Laurence H. Tribe, Constitutional Choices (Cambridge, Mass.: Harvard University Press, 1985), 192-220.
106. Brown, 131 S. Ct. 2771 (Breyer, J., dissenting).
107. Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004).
108. Reva B. Siegel, "Dead or Alive: Originalism as Popular Constitutionalism in Heller," Harvard Law Review 122 (2008): 191, 201.
109. In a sympathetic but trenchant critique, legal scholar Martha Minow has called attention to the tendency of popular constitutionalism to overemphasize social movements and to marginalize the other enormously significant constitutional interpreters within officialdom, including state governments and the executive and legislative branches of the federal government.
110. Martha L. Minow, "Constituting our Constitution,Constituting Ourselves: Comments on Reva Siegel's Constitutional Culture, Social Movement, Conflict and Constitutional Change," California Law Review 94 (2006).
111. District of Columbia v. Heller, 554 U.S. 570 (2008).
112. Reva Siegel made this point in her compelling article "Dead or Alive," published almost immediately after Heller was decided.
113. 539 U.S. 558 (2003).
114. Indeed, the heightened salience of gun rights issues and emergence of debates over the nature of the Second Amendment right ultimately led me to deeper research that in turn prompted a change of view from the second to the third edition of my treatise on American constitutional law.
115. Tribe, American Constitutional Law, 3rd ed., 893-903.
116. Here, I argue that the Second Amendment protects an individual right to bear arms, as opposed to a collective right-as I argue in the second edition-albeit a right subject to considerable regulation. This switch, and the resultant defense of an individual right to bear arms in the 2000edition of my treatise, was discussed by Judge Laurence H. Silberman in his opinion for the District of Columbia Circuit in the decision affirmed by the Supreme Court in Heller.
117. Parker v. District of Columbia, 478 F. 3rd 370, 380 n.7 (D.C.C., 2007).
118. Robert Post, "Foreword: Fashioning the Legal Constitution: Culture, Courts and Law," Harvard Law Review 117 (2004): 1-11, 77-112.
119. H. Tribe, "Lawrence v. Texas: The 'Fundamental Right' That Dare Not Speak Its Name," Harvard Law Review 117 (2004): 1893-1945;
120. Pamela Karlan, "Foreword: Loving Lawrence," Michigan Law Review 102 (2004): 1447.
121. Justice Scalia's controversial originalist methodology in Heller has drawn several defenders.
122. Randy Barnett, "News Flash: The Constitution Means What it Says," The Wall Street Journal, June 27, 2008;
123. Lawrence Solum, "District of Columbia v. Heller and Originalism," Northwestern University Law Review 103 (2009): 923.
124. However, it has also drawn numerous critics, including some prominent conservative jurists.
125. J. Harvie Wilkinson III, "Of Guns, Abortion, and the Unraveling Rule of Law," Virginia Law Review 95 (2009): 253;
126. Nelson Lund, Lucas Powe Jr., and Adam Winkler, "Civil Rights: The Heller Case-Minutes From A Convention of the Federalist Society," New York University Journal of Law & Liberty 4 (2009): 293, 294-305;
127. Richard Posner, "In Defense of Looseness: The Supreme Court and Gun Control," The New Republic, August 27, 2008.
128. Heller, 128 S. Ct. 2783, 2822 (Stevens, J., dissenting). Justice Breyer authored an independent dissenting opinion criticizing the majority for misapplying its own standard to the gun law at issue. See Heller, 128 S. Ct. 2847 (Breyer, J., dissenting) ('I shall show that the District's law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District's regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem').
129. Cass Sunstein, "Second Amendment Minimalism, Heller as Griswold," Harvard Law Review 122 (2008): 246.
130. Mark Tushnet, Why the Constitution Matters (New Haven, Conn.: Yale University Press, 2010);
131. Daryl J. Levinson, "Parchment and Politics: The Positive Puzzle of Constitutional Commitment," Harvard Law Review 124 (2011): 657.
132. David Strauss, "The Irrelevance of Constitutional Amendments," Harvard Law Review 114 (2001): 1457.
133. Tushnet, Why the Constitution Matters.
134. The Living Constitution, 115-139.
135. Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2010).
136. Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).
137. Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011). For an excellent rebuttal to recent scholarship emphasizing the limited degree to which Supreme Court jurisprudence is likely to depart, on the whole, from majoritarian sentiment.
138. Richard H. Pildes, "Is the Supreme Court a 'Majoritarian' Institution?" Supreme Court Review 2010 (forthcoming).
139. Jamal Greene, "Selling Originalism," Georgetown Law Journal 97 (2009): 657, 682-690.
140. Jamal Greene, "Selling Originalism," Georgetown Law Journal 97 (2009): 657, 682-690.
141. McDonald v. Chicago, 130 S. Ct. 3020 (2010).
142. Abraham Lincoln, "Fragmentary Writing, c. 1858," in The Collected Works of Abraham Lincoln, vol. 4, ed. Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953),
143. Tribe, American Constitutional Law, 3rd ed., 73-74, and in Balkin, Constitutional Redemption, 19.
144. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1993);
145. Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004).
146. 410 U.S. 113 (1973). For a fascinating revisionist discussion of struggles over abortion rights and access to abortion in the period surrounding Roe, see Linda Greenhouse and Reva Siegel, 'Before (and After) Roe v. Wade, New Questions About Backlash,' Yale Law Journal (forthcoming).
147. To be sure, the Supreme Court permits considerably more restrictive government regulation of abortion today than it did in the years immediately following Roe v. Wade. At least at a doctrinal level, however, this shift has been one toward greater state power, not one toward greater federal protection for fetal life. States remain entirely free, if they choose to do so, to treat even late-term abortions as nothing more than medical procedures fully within the discretion of women and their doctors and do not yet appear to be under any obligation to protect frozen embryos or fetuses awaiting possible implantation. In this sense, the pro-life position, like any number of others, can count itself among the constitutional visions that aspire toward full realization in the American constitutional narrative but have yet to achieve their goal.
148. 372 U.S. 335 (1963).
149. 388 U.S. 1 (1967).
150. Before Loving, the parents of the current President of the United States, Barack Obama, would have been legally barred from marrying in many states. We have come a long way since those dismal days of lawful racial discrimination. Among the many issues of the 2008 presidential election, including the ludicrous questioning of the place of Obama's birth, the fact that his parents were of different races played no discernible role.
151. Laurence H. Tribe, "The Constitutional Inevitability of Same-Sex Marriage," scotusblog, August 26, 2011,http://www.scotusblog.com/2011/08/the-constitutional-inevitability-of-same-sex-marriage/.
152. This implication of Lawrence was prophesied most clearly by Justice Scalia, who recognized in his dissenting opinion, 'This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples'; 539 U.S. 601 (Scalia, J., dissenting).
153. For example, the end of the military's homophobic 'Don't Ask, Don't Tell' policy on September 20, 2011, which followed aggressive action in each branch of government to end the policy, could hardly have occurred without the pro-gay rights developments in law, society, and politics turbocharged by Lawrence.
154. On my own abandonment of the search for a unified theory of what the Constitution says.
155. Laurence H. Tribe, 'The Treatise Power,' The Green Bag 8 (3) (Spring 2005): 292. On the Constitution as not just a text but also an invisible edifice of principles and practices, see Tribe, The Invisible Constitution.
156. Scholar of constitutional law Louis Michael Seidman makes a similar point when he argues that the purpose of the Constitution is not so much to settle difficult political disputes as to unsettle them by 'provid[ing] citizens with a forum and a vocabulary that they can use [to argue that] the political settlement they oppose is unjust'; Louis Michael Seidman, Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (New Haven, Conn.: Yale University Press, 2001), 8. Seidman's analysis arguably pays insufficient attention to the many potential disputes that never erupt to the point of political salience because the Constitution all but invisibly takes them off the table of serious discourse, but his basic point is nonetheless an important one.
157. Tribe, American Constitutional Law, 3rd ed., 26.
158. Eric Posner and Adrian Vermuele, The Executive Unbound: After the Madisonian Republic (Oxford: Oxford University Press, 2010); Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford: Oxford University Press, 2006);
159. Oren Gross, "Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?" Yale Law Journal 112 (2003): 1011;
160. Mark Tushnet, "Defending Korematsu?: Reflections on Civil Liberties in Wartime," Wisconsin Law Review 2003 (2003): 273.
161. Michael Stokes Paulsen, "The Constitution of Necessity," Notre Dame Law Review 79 (2004): 1257;
162. Bruce Ackerman, "The Emergency Constitution," Yale Law Journal 113 (2004): 1029.
163. Some proponents of the position that a constitutional provision may be ignored during emergencies have latched on to a rhetorical question in Lincoln's message to Congress reporting his suspension of habeas corpus: 'Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?'; Abraham Lincoln, 'Message to Congress in Special Session, July 4, 1861,' in The Collected Works of Abraham Lincoln, vol. 4, ed. Basler, 430-431.
164. Eric Posner and Adrian Vermeule, "Obama Should Raise the Debt Ceiling on His Own," The New York Times, July 22, 2011, http://www.nytimes.com/2011/07/22/opinion/22posner.html?_r=1&hp.
165. They forget what Lincoln went on to say: 'it was not believed that this question was presented,' as it was 'not believed that any law was violated'; Lincoln, 'Message to Congress in Special Session.' According to Lincoln, the Suspension Clause-whose text is silent about who has the power to suspend habeas corpus-authorized him to do so, especially because Congress was not in session at the time. '[A]s the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion'; ibid. Therefore, contrary to Posner and Vermeule's suggestion, not even Lincoln's wartime suspension of habeas corpus is a precedent for the proposition that the president may defy the law 'in situations of extreme crisis.'
166. Posner and Vermeule, The Executive Unbound, 69.
167. Daniel Farber, Lincoln's Constitution (Chicago: University of Chicago Press, 2003), 157-163.
168. Perry v. United States, 294 U.S. 330 (1935);
169. Jeff Shesol, Supreme Power: Franklin Roosevelt vs. The Supreme Court (New York: W.W. Norton, 2010), 87-106.
170. 100 323 U.S. 214 (1944). However, we must not forget that Korematsu upheld only (although tragically) the exclusion of Japanese Americans from certain areas of the country. In a different and often overlooked case decided the same day as Korematsu-Ex Parte Endo, 323 U.S. 283 (1944)-the Court actually found the internment of Japanese Americans illegal, though without reaching the ultimate constitutional question.
171. Patrick O. Gudridge, "Remember Endo," Harvard Law Review 116 (2003): 1933.
172. 101 323 U.S. 246 (1944) (Jackson, J., dissenting). This concern led Justice Jackson to take the extraordinary position that the Court should step aside and let the wartime president do what he must-but should at all costs avoid blessing this action in the Constitution's name.
173. Laurence H. Tribe and Patrick Gudridge, "The Anti-Emergency Constitution," Yale Law Journal 113 (2004): 1801.
174. John Yoo, Crisis and Command: The History of Executive Power From George Washington to George W. Bush (New York: Kaplan, 2010);
175. Jack Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration (New York: W.W. Norton, 2007).
176. One important exception being Posner and Vermeule's The Executive Unbound, which argues that political, social, and cultural forces-not the Constitution itself-have historically constituted the main restraint on executive power.
177. Tribe and Gudridge, "The Anti-Emergency Constitution," 1868.
178. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
179. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
180. This is not to deny that the Constitution's hardwired design-including those of its features, such as the equal representation of the states in the Senate, that create what Sanford Levinson has aptly called a 'democratic deficit' that cannot be corrected by evolving interpretation- is so profoundly problematic as to test the constitutional faith of even its strongest proponents. See Levinson, Our Undemocratic Constitution. But for those of us who hesitate to permit the perfect to become the enemy of the good and who worry about what returning to the constitutional drawing board might yield, the answer, thus far at least, is to live with imperfection rather than to begin anew.
181. Sanford Levinson, Constitutional Faith (Princeton, N.J.: Princeton University Press, 1988);
182. Balkin, Constitutional Redemption, 46-49.