How you feel about this work probably depends on how you feel about the use of the Constitution as an anti-regulatory tool and the idea of corporations as constitutional “persons.” Tribe has taken a strong view of individual rights; his view of corporate rights is similar, and in this capacity he has at times advanced constitutional arguments that might invalidate great parts of the administrative state, in a manner recalling the Supreme Court’s jurisprudence of the nineteen-twenties and thirties. In that sense, the current condemnation of Tribe can be seen as part of a larger progressive backlash against the use of the Bill of Rights to serve corporate interests.
May 9, 2015
"Did Laurence Tribe Sell Out?"
Asks lawprof Tim Wu in The New Yorker. Key paragraph:
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It appears Tribe has committed two crimes: (1) He has departed from the progressive playbook on certain issues. (2) Tribe has represented the evil corporate enterprises the left loves to hate.
Diversity hates nonconformity.
Wu's argument hinges on his unsupported assertion: "But for work to be considered in the public interest, it ought to be, at least in part, on behalf of clients who are in some way underrepresented, or present views that would not be heard." Why is this necessarily so?
It takes a very leftist view to come up with that angle of reasoning.
How about.....the current condemnation of ______ as part of a larger conservative backlash against the use of the Bill of Rights to serve LBGT/feminist interests.
I think Laurence Tribe is doing penance for having aggressively mentored Barack Obama when the latter was at Harvard Law.
He has been called a sellout and a traitor whose arguments are “baseless” and “far-fetched” by professors at New York University, Harvard, and Georgetown.
If his arguments are actually baseless, then the Left will be pleased when he loses and his reputation is twice destroyed.
Methinks they are afraid he will win and are trying to punish him first...
A brilliant individual he is, but Wilbur has a different view from Professor Tribe of how a constitutional republic is supposed to work.
Mr. Tribe was strangely absent from the public scene during the Clinton impeachment mess.
I went back and read what he had written on the subject 20 years earlier in his Con Law hornbook. It wasn't hard then to figure out why either a) the MSM wasn't calling him or b) he was declining all interviews requests.
the Constitution as an anti-regulatory tool
Yeah, that would be an acceptable description of the FUNDAMENTAL PURPOSE of the Constitution.
and the idea of corporations as constitutional “persons.”
You are suggesting rights of individuals do not apply when individuals are in a group?
"he has at times advanced constitutional arguments that might invalidate great parts of the administrative state, "
I wish he were a politician so I could send him a contribution.
My take is that Tribe and Dershowitz are both smart principled Liberals, unlike the rest of the faculty whose legal opinions are informed by their leftist political opinions...
Tribe has taken a strong view of individual rights; his view of corporate rights is similar, and in this capacity he has at times advanced constitutional arguments that might invalidate great parts of the administrative state, in a manner recalling the Supreme Court’s jurisprudence of the nineteen-twenties and thirties.
That word might is a mighty small hinge on which to swing such a great load of claptrap.
There is no influential legal theory of the moment that would invalidate any but the most outlandish edge-cases of the regulatory state.
The stakes are so small. You know the quote.
"Crummy article in the New Yorker by Ivy League Professor" - should be the headline.
I'd rather read Professor Tribe's arguments on the merits, both for and against, than this drivel
Good for Tribe, but arguing the law is merely a gesture.
A wholesale political war against the regulatory bureaucracy is desperately needed. Entire districts of Washington need to be emptied and made wastelands.
Right deviating capitalist roader.
"There is no influential legal theory of the moment that would invalidate any but the most outlandish edge-cases of the regulatory state."
Not sure if he counts as "influential," but Philip Hamburger has written a pretty good book trying to invalidate most of it.
" . . . the current condemnation of Tribe can be seen as part of a larger progressive backlash against the use of the Bill of Rights to serve corporate interests."
Corporate interests are the interests of voluntary associations of individuals. The Citizens United decision the Left hates was about a non-profit corporation. The Left wants to destroy all independent associations because they act to protect individuals from the totalitarian the state.
Anything that damages the "administrative state" is OK with me. We need more like this.
The late George McGovern, the very liberal 1972 Democratic presidential nominee, made headlines back in the 1990s after his attempt at becoming an entrepreneur in a simple industry—a boutique hotel—failed in part because of bureaucratic regulation:
I also wish that during the years I was in public office, I had had this firsthand experience about the difficulties business people face every day. That knowledge would have made me a better U.S. senator and a more understanding presidential contender. . .
They don't like when people play their semantic games and call them.
Don't call it a corporation. Call it a marriage of loving and not so loving male, female, and trans interests. Complete with diverse and negotiable assets, that may be aborted, planned, or euthanized during a liquidation when they are unwanted, inconvenient, or underperforming.
They don't like when people play their semantic games
Amen, brother. "Corporations are people, babies are not." That's the Supreme Court's view, and it's unanimous. Tribe is a statist, and has no respect for constitutional text. In this case he is very much like all nine Supreme Court Justices. Their flagrant disregard for the word "person" speaks volumes.
Whenever some liberal mocks the Supreme Court for saying that corporations are people, pro-lifers should agree, jump up and down, and mock the Supreme Court for defining babies as property.
Mock them, mock them, and mock them some more. This is all nine of them, including Scalia and Thomas
Scalia has written two books on how to read and interpret words. His "analysis" on the word person is a joke. He has no analysis. And his loyalty, first and foremost, is to his own power.
A person is a live human being.
I will go further and say that if you expand the word "person" to include puppies or dolphins or Exxon, that will not cause half as much grief as when you narrow the word, and start excluding black people, or Jews, or babies.
But regardless of whether you narrow texts (Bork) or expand texts (Tribe), what's beyond dishonest is when you narrow the text and exclude human beings, while you broaden the same text to include non-human beings. At that point you are so fucking dishonest that I throw a book at your head.
Over a hundred years ago, the Supreme Court said that corporations are people. In Pembina Silver Mining v. Pennsylvania, the Court writes, “Under the designation of ‘person’ there is no doubt that a private corporation is included.”
And over forty years ago, the Supreme Court said that unborn babies are not people. It’s rather amazing how we grant humanity to corporations while we deny humanity to unborn children. It’s as if we are usurping God’s authority. We want to play God.
After all, God did not create any corporations. We did that. We are the omnipotent people who have made corporations. And apparently we are so proud of our creation that we have an urge to call it human. “Corporations are people,” we say, even as we know this is absurd.
Meanwhile, we find that we cannot design a human zygote. Indeed, we can barely grasp the mystery of human DNA. We are reproducing the same way monkeys and dogs reproduce, through sex and pregnancy.
Perhaps it’s out of spite, then, that we deny the humanity of an unborn child. We deny any miracle. We say it’s nothing.
Or maybe it’s not spite, but greed. After all, our corporations make money for us. So we are proud and happy about our creation. A pregnancy, on the other hand, costs us money. So we are not proud. We are not happy. We deny your humanity, you expensive little child.
Us code 1, section 1.
1 USC 1: Words denoting number, gender, and so forth
In determining the meaning of any Act of Congress, unless the context indicates otherwise-
words importing the singular include and apply to several persons, parties, or things;
words importing the plural include the singular;
words importing the masculine gender include the feminine as well;
words used in the present tense include the future as well as the present;
the words "insane" and "insane person" shall include every idiot, insane person, and person non compos mentis;
the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
"officer" includes any person authorized by law to perform the duties of the office;
"signature" or "subscription" includes a mark when the person making the same intended it as such;
"oath" includes affirmation, and "sworn" includes affirmed;
"writing" includes printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise.
It's a funny world where "corporations are people" is an odious fiction, but "regulations are laws" is a benchmark principle that can never be questioned.
hey Terry,
That's a pretty good argument, and it would be decisive if we were talking about an act of Congress (i.e. a federal statute)..
But of course the Constitution is not an act of Congress. It is a popular document, ratified by popular majorities. The first line in the Constitution is this one:
"We the People of the United States..."
That is clear language. It would be absurd (and dishonest) to substitute the word corporation there. "We the Corporations of the United States..." Just bizarre and ridiculous.
Some words are a "term of art" and you can argue that person is one of those words. I call bullshit. You don't have to go to law school to know what a human being is. And the argument that a person is whatever the state says it is? That's an argument that will cause a lot of unrest among our people.
The argument, Saint Croix, is that the people who come together for common purpose do not subsequently lose the rights they held as individuals. That would be an absurdity. It would also operate against various rights named in the Constitution.
You may call bull shit. But you remain wrong.
Tribe got in trouble a few years back for writing that the 2nd Amendment was an individual right equal to the others in the Bill of Rights.
Forty years of loyal service to the company, as the punchline goes, but have sex just once with a goat in the company parking lot and people complain!
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