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One of the privileges of being a professor is that you can decide not to finish a monster homework assignment. Laurence Tribe, the Harvard academic and U.S. Supreme Court litigator, did just that in the spring, when he canceled the completion of the third edition of his totemic tome, American Constitutional Law. Tribe’s two-volume treatise has been standard reading for judges, lawyers, and students of constitutional law since the first edition appeared 27 years ago. It made his reputation as one of the country’s pre-eminent legal thinkers and helped coax to life what some then considered the dry-as-dust field of constitutional analysis. An inquiry from Justice Stephen Breyer prompted Tribe to announce that he was abandoning the latest edition halfway through, scuttling the second volume that was slated to cover individual rights and liberties. Why is Tribe leaving his project unfinished, and what does his decision signify about the field he helped bring to life? TO TILT AT WINDMILLS The aim of Tribe’s treatise was never simply to describe the state of the law as the Supreme Court determines it. Instead, his goal was to connect and synthesize rulings that seemed to be at odds with each other, or to tie recent developments in the Court’s thinking to themes from an earlier era. “This treatise ventures a unified analysis of constitutional law,” Tribe boldly wrote in the introduction to the 1978 first edition. Tribe’s politics are generally liberal, and he had a point of view about the hundreds of cases about which he wrote. But his aim wasn’t to force his text into the service of a particular ideology. Instead he was looking for intellectual coherence and movement. In the introduction to the second edition of the treatise, published a decade after the first one, Tribe remained convinced that he could stay largely outside the political fray. He’d continued the project, he said then, because he rejected both the view of the left that constitutional discourse “is but an apology for the status quo” and the view of the right that his own arguments were “but a cover for liberal political views.” By 1999, however, when the first volume of the third edition appeared, Tribe was beginning to have doubts. “Much has happened in the world of constitutional law, and in my own thinking about the subject, making it tough to find a point at which the trajectory of my ongoing work in writing this book could intersect the trajectory of evolving ideas and relevant events,” he wrote. Now Tribe has concluded that the fissures on the current Court are too deep and too visible — and its future direction too uncertain — to make an effort at the Grand Unified Theory worthwhile or plausible. “There are always subterranean disagreements and differences of philosophy,” he said in a phone interview. “But now on the Supreme Court, the disagreements are so fundamental and persistent. How much, if at all, should we look abroad when interpreting the Constitution? To what extent is the wall between church and state a misguided enterprise? The way questions like these get resolved will make so much difference in terms of the shape of the future, and it just seems more intelligent to wait for a while.” In a letter explaining his decision, published this spring in the journal The Green Bag, Tribe compared the current Court with the one headed by Chief Justices Harlan Fiske Stone and Fred Vinson in the 1940s. The Lochner era was over, but no clear alternative had arisen to take its place. Even though his Court-packing scheme was thwarted, President Franklin Roosevelt was in the midst of appointing eight new justices to the Court. Legal realism was poised to kick over the traces of the classical theory that treated law as God- or nature-given. To write a treatise aiming at synthesis and unity at that moment would have been to tilt at windmills, Tribe argues. Tribe doesn’t expect President George W. Bush to appoint a whole new Court, as FDR did. But he thinks the 11 years of stability on the Court — interrupted in July by Justice Sandra Day O’Connor’s retirement — may soon end with a crash. A CONSTITUTIONAL MOMENT? Other scholars working on comprehensive constitutional law projects would beg to differ — or at least so it seems, since they have proceeded undaunted. Erwin Chemerinsky of Duke Law School is the author of the one-volume Constitutional Law: Principles and Policies. Yale Law School’s Bruce Ackerman is completing a trilogy that weaves together the actions of the Supreme Court, Congress, and the president at “constitutional moments” — the Reconstruction Era and the New Deal, for example — that have dramatically altered the course of American law and history. On a somewhat different scale, this fall Akhil Reed Amar of Yale will publish America’s Constitution: A Biography, which surveys the founding document from its preamble to the most recent amendment. And Yale’s Jed Rubenfeld recently published Revolution by Judiciary: The Structure of American Constitutional Law, which builds on his previous work in offering an explanation and defense of the living Constitution, from the points of view of doctrinal interpretation and democratic theory. Should Tribe be viewed as an oracle whose prediction of an imminent shake-up ought to be heeded, lest these authors find to their chagrin that their work does not stand the test of time? Perhaps not. Ackerman, whose work is all about the transformative power of a few key eras, doesn’t see the constitutional equivalent of Judgment Day on the horizon. “I found it very unpersuasive,” he says of Tribe’s rationale for his decision. “I should say, I suppose, that I welcome him belatedly to an embrace of my theory of constitutional transformation. But is this a constitutional moment? Maybe, maybe not. And even if we do see a large change in the next 10 years, it’s wrong to suppose that it will be a total revolution.” Think of the 10 most important cases of the Warren and Burger Courts — Miranda v. Arizona, Reynolds v. Sims, Roe v. Wade, among them. To a remarkable degree, they have sustained themselves over time. The Rehnquist Court’s move to the right has been incremental. Even the federalism decisions, which a few years ago seemed likely to severely clip Congress’ wings, look more like a mini-mutiny in light of a few recent decisions like the one in June to allow the federal government to prosecute medical marijuana users in California. PRACTICAL AND READABLE Tribe’s change of heart comes during a time of cultural, rather than legal, change. His treatise assumed a community of interest among scholars and judges. Increasingly, however, judges are impatient with the narrowly focused, heavily footnoted pieces coming out of the academy. In some ways, this divergence only underscores the need for a treatise like Tribe’s — a work that is sweeping rather than cramped, that takes a practical approach to case law analysis and is damn readable. The problem is that treatises thick enough to prop open the heaviest courtroom door don’t exactly write themselves. Tribe has other things he’d like to do, he told me: cases to argue before the Supreme Court, classes to teach, and other books to write — in particular, a coloring book for grown-ups with diagrams, if not pictures, to color. Before he became a law professor, Tribe was on his way to earning a doctorate in mathematics, and he loves using geometric structures to chart and connect constitutional theories for his Harvard students. The coloring book, designed for lawyers and law students, is about taking that impulse as far as it can go. And when you think about it, the idea isn’t so different from a treatise — it’s all about linking up different doctrines and decisions, about making sense of the whole by putting together the parts. Plus it sounds like a lot more fun. Maybe the judges of the future will be able to turn to Tribe as their guide to the constitutional developments of the last 15 years. They’ll just have to import color-by-number diagrams into their citations.
Emily Bazelon is a senior editor at Slate . This commentary first appeared in the August issue of The American Lawyer, an ALM magazine.

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