26 Mar 2007

Obama’s Non-Euclidean Constitutionalism

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Gary Shapiro, in the New York Sun, discusses Barack Obama’s collaboration with Harvard Law School’s ultra-liberal Constitutional Law Professor Larry Tribe in the production of a 1989 Law Review article employing scientific metaphors to justify bizarre and over-reaching interpretations of the Constitution.

You thought liberal Supreme Court justices’ interpretations of the Constitution were bad enough now? Just imagine new Obama-appointed justices following Larry Tribe’s suggestion of applying a little Heisenberg to Constitutional jurisprudence.

Is Barack Obama a space cadet? The man who would become senator of Illinois and a top Democratic presidential contender was credited for editorial or research assistance in a page-one footnote of what may be the zaniest-titled article ever published by the Harvard Law Review: “The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics,” authored by noted legal scholar Laurence Tribe.

The 39-page densely argued treatise — think “The Paper Chase” meets “Star Trek” — argues that constitutional jurisprudence should be updated in a similar way that Einstein’s theory of relativity replaced Newtonian mechanics, a view that would release judges from the original intent of the Founders of America. Published in 1989, with help of the much younger and politically greener Mr. Obama (a few others are also thanked in that footnote), the article is sprawling with references to cultural anthropologist Clifford Geertz and physicists Stephen Hawking and Werner Heisenberg.

In 1990 Mr. Obama became the first black president of the Harvard Law Review. The long-ago article could indicate his views on the Constitution, which, if he is elected, could come into play in such matters as his choice of nominees to the Supreme Court. …

Mr. Tribe employs this analogy to argue for a more expansive view of what constitutes governmental action. He examines legal cases involving child abuse, suburban white flight from suburbs, and abortion, asking what the state’s role was in shaping the legal environment.

A Yale-trained lawyer who earned his Ph.D. in mathematics at New York University, Elisha Kobre, said Mr. Tribe is “making a reasonable — but debatable — legal point that courts should intervene not only when government directly infringes individual rights but also when people are adversely affected by existing social structures that he asserts have been created or perpetuated by the government.” Mr. Kobre added that while Mr. Tribe’s physics analogy did not particularly add to or enlighten a point that others have made before, it was nice to see a lawyer managing to incorporate ideas of science into legal theory. …

If Mr. Obama captures the White House, he might not curve space but may settle for setting aside a high-altitude seat on the Supreme Court for his former teacher, Mr. Tribe, who is the Carl M. Loeb University Professor at Harvard.

Whether James Madison and the other Founders would have had such a benign view of Mr. Tribe’s theory is another matter, though.

Read the whole thing.

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