30 November 2000



The media has fallen all over itself with the rather dull observation "How ironic that the Bush team will argue before the Supreme Court that a Federal Court ought to trump a State Supreme Court when conservatives are supposed to be for states' rights."  Now, I cringe when most media figures discuss constitutional law (or anything that requires any degree of intelligence really).  I really cringe when I hear media figures -- and some conservatives -- wrongly use the term "states' rights" since rights are held by individuals, and certain POWERS are reserved to states in our constitutional system.  And I'm starting to cringe when I hear this oversimplification of the "conservative" approach to constitutional interpretation (which really consists of several different strains, such as the Bork conservative-positivist approach, the Posner approach, the Jaffa approach, and others -- there is no one "conservative" approach), since most conservatives are in agreement that the U.S. Constitution ought to be followed strictly REGARDLESS of whether it impinges on a state's power to act or (as is the case most of the time for conservatives) on the national government's power to act.

Leaving all of that aside, what REALLY bothers me about the media is that they've jumped on the "irony" noted above, but not one commentator has noted the greater irony, which is that Professor Laurence Tribe, who for years has argued for the Supreme Court to create new rights and to extend itself rather intrusively into EVERY level of our otherwise federal system, will be arguing on behalf of Mr. Gore that the Supreme Court has NO power to intervene in the current controversy precisely BECAUSE IT IS A STATE MATTER outside of the purview of the Supreme Court!  If one looks at the writings of this nutty professor (a note:  he is a widely respected Harvard con law prof who really fancies a position on the Supreme Court, but who has long been considered way too radical ever to be confirmed and has never been nominated), one is struck by the fact that he has advocated precisely the opposite of what he will present to the Supreme Court for his entire career!

THAT is the great irony of this case, and one that I've not seen mentioned anywhere else.

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