Treatise writing during constitutional moments.

• Author: Tushnet, Mark V.
• Position: Response to Laurence Tribe, Green Bag, vol. 8, p. 291, 2005

Having written what in the legal academy counts as a notorious review of the first edition of Laurence Tribe's treatise, (2) I found intriguing Professor Tribe's account of his decision to suspend indefinitely the development of the treatise's third edition. For me, it raises once again what I should have focused on more clearly in my earlier review--the nature of the genre legal treatise, or at least constitutional law treatise. Professor Tribe's decision rested on his understanding of what the genre required. In this brief comment I examine that understanding.

For Professor Tribe, "the point" of the genre is "a synthesis of some enduring value." (3) I take this to mean that the treatise should take seemingly disparate cases--whether from a single conventionally defined field, such as the dormant Commerce Clause, or what is Professor Tribe's greatest strength, from fields that most of us think quite unrelated--and demonstrate how those cases are unified by some larger themes or, in Professor Tribe's terms, "models." But, Professor Tribe argues, at this moment in constitutional law there are no such themes. And, I think, he means by this more than that there are no themes that might (separately) unify "liberal" and "conservative" decisions. I think his position is that treatise-writing is impossible even though there might be themes that might unify liberal decisions, and competing themes that might unify conservative decisions. After all, his first edition offered a number of models, and did not claim that those models were unified within some larger scheme, nor, if I read the treatise correctly, that particular topics were necessarily allocated to particular models. Professor Tribe's treatise, that is, did not rest on the assumption that its unifying themes were themselves unified on a higher level, except that of the Constitution itself. So, the mere existence of alternative models, and I think even of alternative models linked to conventional political positions, should not be enough to defeat the treatise-writer's enterprise.

The difficulty, I believe, must lie in something like one of the following possibilities. (1) Today there are simply too many things that lesser scholars than Professor Tribe would offer as unifying themes. That is, one can move up from the level of individual decisions to some slightly more general level, but in doing so one has not identified anything like the kind of synthetic theme a treatise-writer should present readers. In this mode, what one gets are marginally more abstract descriptions of the case results, perhaps cutting down the enumeration of fifty outcomes to a list of twenty "generalizations." That, though, is not what the treatise-writer is after. (4)

(2) One might think that a treatise-writer could use conventional political categories to organize the materials one level up from case outcomes. Professor Tribe does not say so, but I suspect that he believes--and if he does, he believes correctly--that even this is impossible. The reason is that, one level up, there are once again policy outcomes with no systematic connection to "liberalism" or "conservatism" understood as unifying themes that draw policy outcomes together into some coherent package. (5)

(3) There are...