29 September 2001
Tribe?!
It is nothing short of amazing when I find myself in substantive agreement with an op-ed penned by Professor Laurence Tribe, yet that is the case today. The speed with which legislatures often make grave errors in rushing through legislation in response to national emergencies (OKC bombing, anti-terror legislation, even much of the New Deal!) is astounding, and one of the beauties of our complex political system is that this temptation is usually frustrated institutionally so that significant political change can only be effected by persistent, reasoned majorities, not temporary public passions.
Tribe is correct to argue that civil liberties ought not be recklessly sacrificed to temporary public passions. What is interesting to me, however, is that many of the same people inclined to argue AGAINST the legislature recklessly enacting laws in response to the terrorist bombing are some of the same people contending that pilots (and maybe even passengers with concealed-carry permits) be immediately allowed to carry guns on planes! Surely some reasoned debate and study of THAT solution is as much in order as reasoned debate on other aspects of anti-terrorism legislation.
Just as I find it amusing that some of the people arguing for the government immediately allow pilots to have guns on passenger planes are the same ones arguing for slower moving legislation in other areas, I also find it amusing that Tribe in his two final paragraphs has now become an advocate of judicial restraint of a sort! Tribe is a distinguished professor of law who has long argued for judicial activism (in those areas he favors, of course!) and a "living" constitution. So it's peculiar when he accuses the Rehnquist Court, generally guided by principles of judicial restraint and original intent, of a "misguided belief that it has all the answers." Tribe, of course, has long suggested that the Supreme Court has all the answers and has resisted critics like Bork who would show greater deferences to original intent and legislatures. Tribe's final paragraph is even more strange, given his long history as a judicial activist:
I hope that next time Professor Tribe is inclined to urge the Supreme Court towards activism on some pet issue, that he will remember his own advice! I also hope plenty of people notice that Professor Tribe has seemingly abandoned his old "Living Constitution" views and will hold him to his new-found wisdom!
[Posted @ 04:41 PM CST]
