American Constitutional Law, vol. 1.

• Author: Segall, Eric J.
• Position: Review

AMERICAN CONSTITUTIONAL LAW, THIRD EDITION, VOLUME I. By Laurence H. Tribe.(1) The Foundation Press, Inc. 1999. Pp. 1381. $47.50.

It has been a little more than ten years since Professor Laurence Tribe published the Second Edition of American Constitutional Law, and now he has returned with the Third Edition (Volume 1). The prior versions of the treatise have already been reviewed by some of this country's most respected constitutional law thinkers.(3) This extensive scholarship raises the question whether there is anything left to say about Professor Tribe's project that would be helpful and important. For the following reasons, I believe American Constitutional Law is worthy of further evaluation.

First, the Supreme Court has decided a number of important cases over the last ten years, especially in the federalism and separation of powers arenas. This review will critique parts of Professor Tribe's treatise that could not have been included in previous editions.(4)

Second, the third edition includes one hundred new pages on the legitimacy of judicial review. In this part of the book, Professor Tribe raises fundamental questions about the various modes of constitutional interpretation. Unfortunately, this new section is disappointing because it is limited to generalizations about traditional legal doctrine that have little application to how the Supreme Court actually decides constitutional cases. This review will argue that Professor Tribe overstates significantly the role that text, tradition, history, and precedent play in constitutional interpretation.

Third, I am going to take a different approach to Professor Tribe's discussion of case law than most of my predecessors. The reviewers of the first two editions generally summarized and critiqued two or three sections of the book while explaining why his or her solution to a specific constitutional problem was better than Professor Tribe's. I doubt many people care what I think about discreet constitutional law issues, and most of the readers of this review already know how Professor Tribe would resolve most constitutional questions. Therefore, instead of summarizing and critiquing his substantive views, I will identify a serious problem with his mode of analysis that renders much of the normative argument in the treatise unsatisfactory for precisely the same reason so many of the Supreme Court's cases consistently disappoint constitutional law scholars. I will label this difficulty the "black hole" problem.

The dictionary definition of a black hole is "a hypothetical invisible region in space with a small diameter and intense gravitational field that is held to be caused by the collapse of a massive star."(5) I will use the phrase "black hole" metaphorically to refer to a difficult problem raised by a constitutional controversy that the Court ignores or fails to recognize but when exposed by a critic renders the Court's analysis unpersuasive. In light of the open texture of the traditional sources of constitutional doctrine, the "gravitational" pull of these black holes inevitably swallows the asserted justifications for many of the Court's decisions.

Professor Tribe's treatise is also replete with black holes, both when he proposes solutions to specific constitutional problems and when he discusses the legitimacy of judicial review. In this regard, the book is a perfect reflection of how the Supreme Court decides constitutional cases, and yet another reminder of how those who write about constitutional law have failed to develop a coherent response to the problem of legal indeterminacy.(6)

1. CONSTITUTIONAL INTERPRETATION

   The Third Edition of American Constitutional Law contains a lengthy new section discussing the "competing and complementary approaches to constitutional interpretation ... [and] explores the relationship of those approaches to one another and to alternative theories of what the Constitution is for and of what, if anything, makes it (and the judiciary's power to enforce it) `legitimate.'" (p. v) Despite this characterization of this new section, Professor Tribe also states that "political and moral philosophy" are "deliberately relegate[d] to the periphery" of his book. (p. 1 n.1) Furthermore, he concedes that the treatise does not focus on the problem that "constitutional adjudication is especially problematic--is not judging in the ordinary sense--and therefore that constitutional law is always open to the worry that Supreme Court justices routinely exceed their office." (p. 3) By page three of the book, therefore, the reader is told that American Constitutional Law contains a new section on constitutional interpretation and "what (if anything) ... make[s] [it] legitimate," (p. 1) but the book is going to largely ignore issues of moral and political philosophy and not directly address whether Supreme Court Justices "exceed their office" because "constitutional adjudication is especially problematic." When I read this section, I wondered how Professor Tribe could discuss constitutional interpretation and the legitimacy of judicial review without discussing political philosophy or whether constitutional adjudication is especially problematic.

   To accomplish his goals, Professor Tribe provides separate discussions of text, structure, original intent, normative and pragmatic argument, and precedent. Each section follows a consistent pattern. Professor Tribe raises difficult questions about the relationship between each mode of interpretation and constitutional analysis, and then purports to say some rather definitive things about how those who interpret the Constitution should use each mode. The problem is that every chapter contains statements about the modes of interpretation that are inconsistent with each other, with specific constitutional outcomes he defends, or both. The result is that Professor Tribe evades most of the truly difficult issues raised by the Supreme Court's exercise of judicial review.

   Professor Tribe begins with the text of the Constitution and argues that "[i]n all of what follows, the constitutional text is taken as authoritative in the sense that anything flatly contrary to it cannot stand, even if not as invariably exhaustive of the universe of constitutional meaning." (p. 38) Professor Tribe rejects the "realist" claim that the text of the document "may be discarded by desuetude and in any event represents supreme law only when actual practices conform to it." (p. 35)

   This is a nice description of textualism most judges would happily embrace. Unfortunately, when applied to actual cases and controversies, it does little work and is not entirely accurate. For example, in his chapter on textual analysis, Professor Tribe argues that the current Supreme Court's reading of the Eleventh Amendment (that it prohibits federal question suits against the states unless Congress acts pursuant to Section 5 of the Fourteenth Amendment, even suits brought by in-state citizens) is inconsistent with the Amendment's clear text, which provides the following: "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."(7) Professor Tribe's proposed interpretation of the Eleventh Amendment, however, that would allow Congress to authorize all federal question suits against the states, (pp. 547-55) is equally inconsistent with the text of the Eleventh Amendment, which unambiguously prohibits all lawsuits against a state by an out-of-state citizen, with no exception for federal question suits. A person who would allow such suits in clear contradiction to the text cannot also endorse the idea that "the constitutional text is taken as authoritative in the sense that anything flatly contrary to it cannot stand." Yet, Professor Tribe takes both positions and makes little effort to reconcile them. A true analysis of the relationship between the role of clear text in constitutional interpretation and real life controversies falls into a black hole.

   Similarly, Professor Tribe purports to adopt a rigid textualist-formalist approach to most separation of powers cases.(8) He cites with approval the language from INS v. Chadha,(9) that Article I contains a "single, finely wrought and exhaustively considered procedure" for national lawmaking. (p. 749) And, in his rejection of Bruce Ackerman's theory that the New Deal amounted to an informal constitutional amendment, he argues the following:

   The form of reasoning employed to discover constitutionally ... acceptable modes of Constitution-changing could certainly be used at least as easily to conclude ... that laws might be passed for the entire country by bodies other than Congress ... [because] [o]nce one endorses a mode of interpreting structural provisions like Article V that is as loose and unconstrained as is the mode these arguments entail, we're off to the races and it's anybody's guess where we might end up. This is one reason that "the most plausible way of reading the Constitution as a legal text ... [is] to read as exclusive those provisions that specify how elements of the supreme law of the land are to be adopted." (p. 107) (emphasis added) This reliance on textual analysis when interpreting the Constitution's structural provisions rings hollow, however, inasmuch as there is no serious discussion in the book of the inconsistency between the current Administrative state and Article I's command that "All legislative Powers herein granted shall be vested in a Congress of the United States...."(10) The Executive Branch exercises "legislative powers" through regulatory activities pursuant to extremely broad delegated powers and has done so for a long time. A "realist" might even suggest that Article I's unambiguous directive has in fact been "discarded by desuetude" and no longer reflects "supreme law"...