September 22, 2011

Tribe Examines Constitution’s Future Evolution at Wyant Lecture

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President Sr. Janet Eisner, SND, Laurence Tribe and Professor of Political Science Lenore Martin

Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard University, discussed "What will the Constitution mean in 2037?" at the October 5th Wyant Lecture held in the Janet M. Daley Library Lecture Hall. The prominent legal scholar examined the Constitution's trajectory over the past couple of centuries, as well as how the document's interpretation will continue to evolve, while the text remains virtually unchanged, until 2037, a quarter of a century after next year's elections.

"Never has our Constitution been more front and center in the news," said Tribe, "with all sorts of groups claiming to know its authentic meaning, often challenging the very Americanism of those to dare to read it differently. Those kinds of claims...are a cause for concern about where we are heading as a nation."

Apart from six relatively minor amendments dealing with presidential election and succession, Congressional compensation, poll taxes and the voting age, not a word of the document's text has changed since 1951. However, the meaning of the Constitution as interpreted and enforced by the courts, as applied by the government, and as understood by the public, has changed profoundly.

The same Constitution was understood to permit racial segregation by law in public schools, to support the criminalization of interracial marriage, to endorse government suppression of political dissent, to allow official prayers in public schools, to permit the use of coerced confessions and illegal searches to obtain convictions, and other practices that would be constitutionally unthinkable under today's legal framework.

"Even if not one single word in the Constitution's text will have changed a quarter century from now, between 2012 and 2037, it will be a different set of political actors, including a differently composed Supreme Court, interpreting the document in an inevitably different social and cultural context that largely determines the operative meaning of much of our Constitution's deliberately open-textured language," said Tribe.

Tribe noted the possibility that social and political movements that denounce all current interpretations as treason, as a betrayal of the Constitution's original meaning, might someday be backed be a majority of Supreme Court justices who share the same perceptions.

"If that transpires, then the next generation of Americans...will grow up in a nation whose fundamental law is authoritatively interpreted to say that each human being is indeed an island, and that the safety net constructed ever since the New Deal was built of illusory ropes.

"But the plain truth is this, what might actually matter the most in shaping the Constitution's future, are not just the things we tell one another we think the Constitution should be understood to mean, but seemingly unrelated things, like the state of the economy in Greece and Italy and Spain, and the unemployment numbers next summer and fall, or whether people think we're in a double-dip recession by the time they go to the polls next November, because those concerns will powerfully shape the outcomes of the coming elections."

Those outcomes, Tribe said, will make a huge difference for the simple reason that the people whom a new president would nominate to sit on the Supreme Court will play a major role in the process of giving the text authoritative meaning, as Justices tend to serve for decades, well beyond the terms of the presidents that appoint them to the bench.

Tribe also spoke of changes in the constitutions in other countries, such as Iceland, which recently rewrote its constitution on the Internet, crowdsourcing with the help of social media.

"Some of us, me included, find ourselves reluctant to take that gamble," said Tribe. "Are we afraid of what government that isn't just ‘of the people' and ‘for the people,' but truly ‘by the people' would mean?"

While not willing to put our Constitution up for grabs, Tribe believes that we are essentially rewriting our Constitution on the Internet every day, through a lively dialogue by people from all walks of life.

"Put simply, I have long believed that the Constitution is a verb. It's what propels ‘We the People.' It constitutes the spirit of the intergenerational process whereby the Constitution's deliberately open-ended terms are subject of continuing debate, deliberation and reinterpretation. Not just by folks wearing black robes and wielding gavels...but in the halls of Congress, in the White House, in town hall meetings, in countless local and national conversations among ordinary people, in lecture halls like this one, on street corners, and yes, in social media such as Facebook and YouTube and Twitter."

The New York Times described Tribe as "arguably the most famous constitutional scholar and Supreme Court practitioner in the country." He has taught at Harvard Law School since 1968 and was voted the best professor by the graduating class of 2000. Tribe's title of "University Professor" is Harvard's highest academic honor, awarded to just a handful of professors at any given time and to fewer than 70 professors in all of the university's history.

Tribe helped write the constitutions of South Africa, the Czech Republic, and the Marshall Islands, and is the recipient of 10 honorary degrees, most recently a degree honoris causa from the government of Mexico's National Institute of Criminal Science in March 2011, which had never before been awarded to an American. He has prevailed in three-fifths of the many appellate cases he has argued (including 35 in the U.S. Supreme Court), and was appointed by President Barack Obama and Attorney General Eric Holder in 2010 to serve as the first Senior Counselor for Access to Justice.

A member of the American Academy of Arts and Sciences and the American Philosophical Society, he has written 115 books and articles, including his treatise, American Constitutional Law, which has been cited more than any other legal text since 1950.

The Wyant Lecture Series features speakers in the humanities, history and the arts. This endowed professorship was established by the late Louise Doherty Wyant '63 and her husband, Dr. James Wyant, in honor of Sister Anne Cyril Delaney, SND.