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Tribe Scalps Kramer


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.


Laurence H. Tribe replies: