CONSTITUTIONAL CHOICES. By Laurence H. Tribe. Harvard University Press. 458 pp. $29.95.
GOD SAVE THIS HONORABLE COURT. By Laurence H. Tribe. Random House. 172 pp. $17.95.
AMERICAN legal scholarship has always suffered from the tension implicit in the fact that American law schools are located halfway between the university and the bar. In recent years especially, most American law teachers are uneasy if they stray too far from the busy, familiar, and reassuring realm of the courthouse. Laurence Tribe, an energetic professor of constitutional law at Harvard, is no exception to the rule. His work faithfully represents the middle range of a middle- brow literature which is long on the detailed exegesis of judicial opinions but weak in delineating a philosophical and historical universe witin which the role of the Constitution in the process of American life might be understood. Tribe has the words but not the music of the American constitutional experience.
Constitutional Choices is a collection of Tribe's recent professional articles and lectures. They start with an astonishing dismissal of all attempts to establish the democratic legitimacy of the judicial function, particularly in American constitutional law. The rest of the book consists of seven chapters dealing with problems in drawing constitutional boundaries between branches of the government and four chapters on issues arising under the Bill of Rights.
God Save This Honorable Court attempts to persuade the non-professional public that the selection of Supreme Court justices is important to the nation. This being the case, Tribe urges, each citizen should use all possible influence to make sure that the president and Senate both seek consciously and actively to achieve the appointment of justices who share his or her preferred vision for the future of America. That, at least, is the formal message of the book. The real message is a plea for a court which would meet Tribe's standards of a "progressiveness" and "liberalism" -- fighting words which Tribe uses without attempting to define their meaning, if any, for constitutional law.
In both books, Tribe demonstrates considerable skill in making choices while pretending not to. For example, in Chapter 1 of Constitutional Choices, "The Futile Quest for Legitimacy," he asks: "Who would disagree that constitutional decisions -- choices among competing constitutional arguments and meanings -- ought to, and necessarily do, represent something less whimsical and personal than the unconstrained 'will of the judges.' Yet who could believe that constitutional decisions and choices might reflect anything as external and eternal, impersonal and inexorable, as 'the will of the law'?"
With these venerable straw horses safely dragged from the stage, one naturally expects the author to explain how he would characterize the criteria a "good" judge should use in making the constitutional choices which come his way. The reader expects in vain. Tribe tells us that he is neither a nihilist nor a cynic and that he disagrees with those who would confine judicial intervention to enforcing the procedural rules of democratic decision making, or protecting "personal" rights but not "property" rights, or carrying out the supposed intent of the Founding Fathers or the literal text of the Constitution, or taking the latest legal fad seriously and attempting to subject all constitutional principles to a cost-benefit analysis.
So far, so good. This reviewer, in any event, has no quarrel with Tribe's dismissal of the fashionable clich,es.
But what would Tribe substitute for such unsophisticated and inadequate formulas? He refuses to say. Thre is no escape, he tells us, from the fact that all exercises of power are "problematic." Since this is so, he finds "all legitimizing theories not simply amusing in their pretensions, but in the end, as dangerous as they are unconvincing." Those who think they have found a theory to legitimize what they do "are far more to be feared than those who worry but whose worries are unabated by any neat legitimating formula."
More than 60 years ago Benjamin Cardozo published a classic account of a sensitive judge's ordeal in making decisions. Of course all exercises of power are "problematic." And of course no one should ever forget Cromwell's admonition: "In the bowels of Christ, consider that ye may be mistaken." But concern about the possibility of error cannot justify either the decision maker or the professor in evading the responsibility for choice and walking by on the other side. That privilege is reserved for the barrister, whose function, Erskine once wrote, is not to confuse his duty with that of the judge, but only to see to it that his client obtains every legitimate advantage afforded him by the law.
OF COURSE Tribe does make choices on nearly every page, but the reader has to excavate Tribe's standards for judgment by a process of unaided inference from what he says, from the vocabulary he employs, and from the pattern of his enthusiasms. There is no attempt to formulate and clarify the criteria he uses or to justify their selection as criteria.
The result is incoherence, permitting Tribe to indulge his predilections with whimsical freedom.
Chapter 6 is a good example of Tribe's method in action. The chapter deals almost entirely with the legislative veto, the modern practice of passing legislation which reserves to Congress the power to terminate or reverse a president's action under the statute or even to repeal the statute by a concurrent resolution, that is, a resolution passed by both Houses of Congress but not signed or vetoed by the president. The practice originated in 1932, at the dreariest point of the Great Depression, when a doomed Republican president faced a vigorous Democratic Congress already scenting the blood of power. Since then nearly 200 such statutes have been forced upon protesting presidents. They authorize both houses, or one house, or even a congressional committee to effect such legislative vetoes, often in statutes of the greatest importance, like the War Powers Resolution of 1973, which Tribe mentions obliquely but does not discuss.
The first sub-heading of Tribe's chapter gives the attentive reader a clue about the thrust of the author's argument: "The Judiciary's Renewed Assertion of Structural Checks on Congressional Innovation." The topic sentence of the first paragraph sounds the theme: "At least since 1976, the Supreme Court has been anything but receptive to Congress' more innovative assertions of authority." A page later Tribe identifies such "innovative assertions of authority" by Congress as "the pragmatic accommodations of our times" to the development of administrative agencies. A page further on, it is suggested that the legislative veto appealed to many "who resist deregulation but espouse increased democratic control over those regulations which remain." We are not told why presidential and judicial controls over the activities of the executive branch are inadequate or "undemocratic," or at least less "democratic" than congressional controls.
One of the basic structural features of the Constitution is what Corwin called "the divided initiative" in legislation, the president's capacity to veto bills passed by a simple majority of both Houses, and Congress' capacity to override such vetoes promptly by a two-thirds majority. Wilson thought the president's veto power was his most important prerogative. It is certainly one of the most important tools available to the presidency. The Supreme Curt, starting long before 1976, has gone to great lengths to safeguard both the president's veto and Congress' capacity to override it.
It is therefore hardly surprising that many serious students of American politics do not perceive the legislative veto as an "innovative assertion" of democratic legislative authority or "a pragmatic accommodation" to the development of administrative law, but a naked grab for congressional supremacy and the transformation of the American president into a weak prime minister. Tribe gingerly concedes that such concern with congressional encroachment on the president's power might justify the conclusion that some (unspecified) legislative vetoes are unconstitutional, but denies that the issue was raised by Chadha v. INS, decided in 1983, in which the Supreme Court said that all legislative vetoes are unconstitutional.
The Chadha case involved the deportation of an alien by the vote of one house of Congress, reversing a decision in favor of the alien by the Immigration and Naturalization Service. Tribe nowhere tells us flatly whether he considers the court's decision to be right or wrong. Apart from his cursory reference to a desire to bring administrative agencies under "democratic" control, he makes no attempt to examine the problem of the legislative veto in its broader setting of history and constitutional policy and of its application to the president's executive authority, particularly in the field of foreign affairs. Instead, he indulges in a few pages of verbal jousting with the arguments of the Court's opinion. Tribe thinks he has disposed of the logical contradictions and infelicities of the court's opinion and left the decision in intellectual ruins as a "mystery."
But has he? Or has he been too clever by half? For example, Tribe says it is hard to refute the court's thesis, which he ridicules as the proposition that "a law is a law is a law," and adds that thecourt's statement sheds little light on >why the veto at issue in Chadha was so "law-like" an action that it "had" to be deemed legislative. A few paragraphs later, however, he commends Justice Powell for his contention that the legislative veto provision ruled upon in Chadha was a bill of attainder. Powell's view, Tribe says, is "the only imaginable justification" for the decision in Chadha. But a bill of attainder is punishment imposed by legislation rather than by judicial action. Is Powell's argument therefore really different from the majority's? The vote of the House of Representatives deemed unconstitutional in Chadha purported to have effect, in Justice Powell's view, as a legislative punishment. What Powell and Tribe contend in effect is that it would have been an unconstitutional bill of attainder if it had been approved by both houses and signed by the president, and therefore must be condemned as doubly unconstitutional because it was passed only by one house and not signed by the president. Alternatively, Tribe could have said that the bill of attainder issue was not reached because the legislation was passed by one house only, and not signed by the president. In either case, isn't Tribe, like the majority opinion, saying that "a law is a law is a law," for extremely important reasons of constitutional policy?
The legal content of God Save this Honorable Court is the same as that of Constitutional Choices, but somewhat watered down for a general audience. Its thesis is unexceptionable. The selection of Supreme Court justices is indeed important to the nation. The Senate and the public should never concede that a president is free to nominate Caligula's horse to the court. Does this contention require a book to establish it?