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Monday, August 21, 2006

Tribalism Of A Different Sort

Ann Althouse, who is a law professor, exploded on her blog after reading the full ACLU V NSA decision. A few choice excerpts:
At this point, with many issues left to discuss -- including the rest of the standing doctrine and all of the questions of statutory and constitutional law relating to TSP -- the writing falls headlong off a cliff. I have never seen anything like this.
The judge grants a permanent injunction on the assertion that the requirements "have undisputedly been met." Undisputedly? No one disputed that the requirements were met? I guess that was supposed to be "indisputably."
That's not analysis. That's a petulant refusal to take the task of judging seriously.
Ann was referring to second part of the decision regarding the First and Fourth Amendments, which has raised many legal brows. Roused to wrath once more, Ann now combats Lawrence Tribe who reproved those who have criticized the decision. She quotes Tribe's post:
My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues.
In other words, don't let the masses read your criticisms? Ann writes:
Are you saying that ordinary people who don't read law reviews and who are trying to understand current events shouldn't have the benefit of law professors helping them understand an important new case, that we're distracting them from their proper job of despising the President? You want people to concentrate on the judge's conclusion and not to question the judge's reasoning and analysis? To do that is to bow to authority. If that's what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he's doing. Why shouldn't people accept that "important conclusion" and leave it for the experts to hash out the details in law review articles?
A point well taken. If the details of constitutional law are not important, then the president is a temporary monarch. Ann's reaction to the opinion is that it self-defeating to the result desired, and she does believe that it was a result-oriented conclusion. Certainly the legal discussion in the opinion supports her reaction.

The commentary on Ann's second post is well worth reading. Here are the first three:
Headless Blogger:
Read the decision again. You must have missed the part that undisputedly states that the 1st Amendment only applies to the mainstream press, Islamic terrosists and critics of the Bush administration. Blogging law profs are not covered.
Ann, responding:
And then there's also the way the press used to consult the conlawprofs at Harvard and Yale, and maybe Chicago and Stanford and confine their quotes to the pronouncements of these scholars. (I wonder which lawprofs advised the NYT that Judge Taylor had "eviscerated" the administration's arguments. It'd be funny if it was Tribe.) Now these upstarts can blog from any school, and it's this crazy -- I don't know what to call it -- almost a sort of a marketplace of ideas!
vnjagvet (of probonolaw):
Tribe has done his share of pontificating as a talking head and in the popular press. Why is blogging any different?
I think Larry's a bit jealous that blogging has opened the doors for what he considers "lesser lights".
Clue, Larry. The Althouse's and Volokhs of this world are every bit your equal as intellectuals, as analysts and as writers.
They are completely correct. Tribe's thesis is "let not the unwashed read the Constitution". He's probably a McCain supporter. Defending your own little empire has nothing to do with law or the Constitution. Those who care about the Constitution and wish to defend it will be pleased that the Constitution is a force in the life of each new generation. Everything good that we have established in our country is because we are a country of laws. It follows that the interpretation and functioning of our legal system should be an interest of each citizen, just as protecting the food supply should be. If non-TV-personality-lawyers aren't to discuss law, and law shouldn't be discussed in open forums, why should the average person have any respect for the law?

What is Tribe's real interest here? Can it truly be the Constitution?

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