Harvard’s Laurence Tribe, you may recall, was one of the leaders of the mob that crushed Robert Bork’s 1987 Supreme Court nomination, and is one of the leading fixtures of the Left in legal academia. And one of the more remarkable documents you’ll ever read that reveals the protean constitutionalism of the Left is Tribe’s 1989 Harvard Law Review article entitled “The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics.”
For all of its fancy footwork, the article reduces to a simple proposition: because Einstein’s theory of relativity proved that gravity curves space, we should adopt a wholly relativistic attitude in jurisprudence, because of the shifting “gravity” of contemporary social needs. It’s just an update of Brandeis/Holmes-style “felt necessities of the time” argument, adapted for the age of Star Trek I suppose. I sometimes assign this article to students, who find it unconvincing, if not bizarre. In the acknowledgements, however, Tribe thanks one of his research assistants: Barack Obama.
Which makes all the more remarkable that Tribe is now opposing the Obama Administration’s proposal to regulate greenhouse gas emissions with the Clean Air Act and through the EPA. This has raised the eyebrows, and the ire, of all the usual suspects, starting with the New York Times over the weekend:
[M]any in the Obama administration and at Harvard are bewildered and angry that Mr. Tribe, who argued on behalf of Al Gore in the 2000 Bush v. Gore Supreme Court case, has emerged as the leading legal opponent of Mr. Obama’s ambitious efforts to fight global warming.
Mr. Tribe, 73, has been retained to represent Peabody Energy, the nation’s largest coal company, in its legal quest to block an Environmental Protection Agency regulation that would cut carbon dioxide emissions from the nation’s coal-fired power plants — the heart of Mr. Obama’s climate change agenda. . . Mr. Tribe likened the climate change policies of Mr. Obama to “burning the Constitution.”
To many Democrats and professors at Harvard, Mr. Tribe is a traitor. . . Anger from within the Obama administration about Mr. Tribe’s actions is particularly fierce, although officials declined to comment on the record for fear of escalating the situation.
“Whether he intended it or not, Tribe has been weaponized by the Republican Party in an orchestrated takedown of the president’s climate plan,” said one former administration official. . . “He’s about to be banned from a lot of cocktail parties.”
Dave Roberts at Grist is beside himself: “I don’t know how much Peabody Coal is paying Harvard Law professor Laurence Tribe to serve as its mouthpiece, but it can’t possibly be enough.”
Amy Miller at Legal Insurrection gets in the last word:
As for Tribe, he’s taking the criticism with class, saying, “I feel very comfortable with my relationship with Peabody. Somebody wanted my help and it happened to coincide with what I believe.”
I can’t emphasize enough how significant this backlash is in terms of legal scholarship. For better or for worse, Tribe is one of the foremost Constitutional Law scholars in the world. Progressive students worship him, conservative students are challenged by him, and everyone in between seems to have a hard time arguing against him. (I would always encourage them to try, though.)
I say “in terms of legal scholarship,” but this reaction really has nothing to do with legal scholarship. At least not practically. Tribe’s sin isn’t that he has floated a controversial legal argument; his sin is that he has publicly stepped out of line and dared to challenge the philosophical constructs of progressive dogma.
The idea that The Government© should not be allowed to do something to advance a progressive policy isn’t just controversial. In terms of academia, it’s apostasy.
And here’s 30 seconds of Tribe telling Congress that the EPA is “burning the Constitution.” Good to know that Tribe’s constitutional relativism finds some gravity somewhere: