Posted on 09/08/2023 10:52:05 AM PDT by george76
Below is my column in the New York Post in response to the attack this week by Harvard Professor Laurence Tribe. I am honestly saddened by the ad hominem attacks that have become common place with many academics like Tribe. There was a time when legal disagreements could be passionate but not personal. The use of personal insults and vulgar trash talking were avoided in our profession. Now even law deans have called Supreme Court justices “hacks” to the delight of their followers. I have always said that there are good-faith arguments on both sides of the 14th Amendment theory despite my strong disagreement with the theory. The public would benefit from that debate based on precedent rather than personalities.
Here is the column:
This week, CNN’s “Erin Burnett OutFront” offered what has become a staple of liberal cable news: Harvard law professor Laurence Tribe assuring Democrats that they are justified in an unconstitutional effort while attacking opposing views as “nonsense.”
I was singled out on this occasion for Tribe’s latest personal attack because I voiced a legal opinion different from his own.
Being attacked by Tribe as a “hack” is not as much of a distinction as one might expect.
Indeed, it is relatively tame in comparison to Tribe’s past vulgar and juvenile assaults on others.
Tribe has attacked figures like Mitch McConnell as “McTurtle” and “flagrant d**khead.”
He attacked former Attorney General Bill Barr’s religion and thrills his followers by referring to Trump as a “Dick” or “dickhead in chief.”
Tribe often shows little patience for the niceties of constitutional law or tradition.
He has supported the call for packing the Supreme Court as long overdue.
He has also supported an array of debunked conspiracy theories like denouncing Barr as guilty of the “monstrous” act of shooting protesters in Lafayette Park with rubber bullets to make way for a photo op — a claim found to be utterly untrue.
Some of Tribe’s conspiracy theories are quickly disproven — like his sensational claims of an anti-Trump figure being killed in Russia.
Nevertheless, Tribe remains the “break the glass” academic for Democratic leaders when political expedience requires a patina of constitutional legitimacy.
I have long disagreed with Tribe over his strikingly convenient interpretations of the Constitution.
We crossed swords decades ago during the impeachment of Bill Clinton, when Tribe argued that it was not an impeachable offense for Clinton to lie under oath.
Even though a federal court and even Democrats admitted that Clinton committed the crime of perjury, Tribe assured Democrats that it fell entirely outside of the constitutional standard of a high crime and misdemeanor.
However, Tribe would later say that Trump’s call to Ukraine was clearly and undeniably impeachable.
Indeed, Tribe insisted that Trump could be charged with a long list of criminal charges that no prosecutor ever pursued — including treason.
Tribe even declared Trump guilty of the attempted murder of Vice President Mike Pence on January 6, 2021.
Even though no prosecutor has ever suggested such a charge, Tribe assured CNN that the crime was already established “without any doubt, beyond a reasonable doubt, beyond any doubt.”
That is the key to Tribe’s appeal: the absence of doubt.
Every constitutional road seems to inevitably lead to where Democrats want to go — from court packing to unilateral executive action.
Take student loan forgiveness.
Even former Speaker Nancy Pelosi acknowledged that the effort to wipe out hundreds of millions of dollars of student loans would be clearly unconstitutional.
However, Tribe assured President Biden that it was entirely legal.
It was later found unconstitutional by the Supreme Court.
Tribe was also there to support Biden — when no other legal expert was — on the national eviction moratorium.
The problem, Biden admitted, was his own lawyers told him that it would be flagrantly unconstitutional.
That is when then-Speaker Nancy Pelosi gave Biden the familiar advice: Just call Tribe.
Biden then cited Tribe as assuring him that he had the authority to act alone.
It was, of course, then quickly found to be unconstitutional.
Even Democratic laws that were treated as laughable were found lawful by Tribe.
For example, the “Resistance” in California passed a clearly unconstitutional law that would have barred presidential candidates from appearing on the state ballots without disclosing tax records.
Tribe heralded the law as clearly constitutional and lambasted law professors stating the obvious that it would be struck down.
It was not just struck down by the California Supreme Court but struck down unanimously.
Likewise, California Governor Gavin Newsom pushed for the passage of an anti-gun rights law that was used to mock the holding of the Supreme Court’s abortion ruling in Dobbs.
Yet Tribe declared the effort as inspired and attacked those of us who stated that it was a political stunt that would be found legally invalid.
It was quickly enjoined by a court as unconstitutional.
In an age of rage, the most irate reigns supreme.
And there is no one who brings greater righteous anger than Laurence Tribe.
That is evident in arguably the most dangerous theory now being pushed by Tribe — and the source of his latest attack on me.
Democrats are pushing a new interpretation of the 14th Amendment that would allow state officials to bar Trump from the ballots — preventing citizens from voting for the candidate now tied with Joe Biden for 2024 election.
This is all being argued by Tribe and others as “protecting democracy,” by blocking a democratic vote.
Democrats have claimed that the 14th Amendment prevents Trump from running because he supported an “insurrection or rebellion.”
They have argued that this long dormant clause can be used to block not just Trump but 120 Republicans in Congress from running for office.
I have long rejected this theory as contrary to the text and history of the 14th Amendment.
Even figures attacked (wrongly) by Trump, such as Georgia Secretary of State Brad Raffensperger, have denounced this theory as dangerous and wrong.
Tribe was set off in his latest CNN interview after I noted that this theory lacks any limiting principle.
Advocates are suggesting that courts could then start banning candidates by interpreting riots as insurrections.
After I noted that the amendment was ratified after an actual rebellion where hundreds of thousands died, Tribe declared such comparisons “nonsense.”
He asked “how many have to die before we enforce this? There were several who died at the Capitol during the insurrection.”
My comment was not to do a head count, but to note that (since Tribe believes that there is no need for a congressional vote) one would at least expect a charge of rebellion or insurrection by Trump.
Yet Trump was not even been charged with incitement.
Not even Special Counsel Jack Smith has charged him with incitement in his two indictments.
The 14th Amendment theory is the perfect vehicle for the age of rage and Tribe, again, has supplied the perfect rage-filled analysis to support it.
The merits matter little in these times.
You can be wrong so long as you are righteously and outrageously wrong.
every democrat that has voted for any form of gun control is in “rebellion” of the constitution and ineligible for office...
my opinion...
Pissants reveal themselves.
“Laurence Henry Tribe (born October 10, 1941) is an American legal hack who is a University Professor Emeritus at Harvard University” https://en.wikipedia.org/wiki/Laurence_Tribe
Gee, where has Turley been? Dem-communists have made personal attacks since Rush Limbaugh’s time.
Turley still thinks the LEFT cares about the Constitution
“Tribe has attacked figures like Mitch McConnell as “McTurtle” and “flagrant d**khead.””
Well, Tribe is right about McConnell but probably for the wrong reason (the refusal to consider Merrick Garland as a SC justice).
By the time the Commonwealth Day School became a hot topic of debate in the city of Cambridge this fall, it was too late for anyone to help.
Overwhelming pressure from its wealthy Brattle St. neighbors had already forced the private elementary school--whose student body was more than 90 percent minority--to sell its Cambridge building after only one year of limited operation. Forced to relocate into Boston, the school had already seen its enrollment drop to a handful of students.
And the fact that more than 200 of the city's most prominent individuals--including several prominent Harvard professors--had lent their signatures to the campaign to force Commonwealth Day out of the city did nothing to help matters.
"All these people are very political, very liberal about what should be," says Elaine Daily, a teacher at the Cambridge Rindge and Latin School and member of a special mayoral commission which investigated the school's departure. "But it was their turn, and it didn't happen. And that's it in a nutshell."
…
Of all the names on the petition, none attracted so much attention as that of Tyler Professor of Constitutional Law Lawrence H. Tribe '62. .. Tribe is a darling of the national liberal establishment… And last summer, when Commonwealth Day finally announced that it was leaving the city, it was Tribe's name on Brooks' petition, more than any other, that drew attention to the matter.
I wonder how long before Turley’s Georgetown position is jeopardized, now that the scales have fallen off his eyes.
Turkey = EXCELLENT
Tribe = RIDICULOUS
Tribe needs a ride in a helicopter.
L
Tribe is a partisan lunatic, much like Garland. They are indeed the dangerous ones in our society using lawfare to cripple their political opponents. Both would be welcome in the old soviet union.
I remember when NPR pimped this kook as a Supreme Court nominee for President Dukakis.
He may be holding that in reserve to divert attention from major new revelations of Biden's corruption, or to do maximum damage to Trump's 2024 campaign.
Turley NOT Turkey !!!
Damn auto spell !!!!
Trump hunters Schiff & Raskin are former students. Tribe has been obsessed with President Trump for years. He was part of the cabal trying to get electors to flip from Trump in 2016.
There’s a better chance Laurence Tribe is involved in child sex trafficking than there is that Trump committed treason.
Having followed Tribe’s pronouncements through the years, I long ago concluded that he has some sort of cognitive dysfunction.
Isn't declaring a city as a "sanctuary" for illegal aliens a declaration that federal law will not be enforced? How is that not overthrowing the Constitution in their states?
But seriously...
Regarding actual insurrection, there is also 18 U.S. Code § 2383 - Rebellion or insurrection:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.However, individual citizens would not have the wherewithal to undertake an actual insurrection against the federal government. They would need a much larger organization than a militia group, they would need the organized people of entire states to actually pull off an insurrection.
That's why we have 50 U.S. Code Title 50—WAR AND NATIONAL DEFENSE, specifically 50 U.S. Code CHAPTER 13—INSURRECTION.
All of the individual sections refer to "state[s] in insurrection," not individual citizens.
This is understandable given that the 14th amendment was in response to the Civil War and the seceding states (states in insurrection), not individuals. Section 3 of the 14th amendment was written with the idea of preventing the office holders of future seceding states from holding offices in the United States.
Therefore, "insurrection" in the 14th amendment was meant to apply to the several states, not to individual citizens. A state must be in open rebellion before the citizens of that state can be held for insurrection under Title 18.
If Congress tried to pass a new law to define insurrection as inciteful speech in front of a large crowd near the Capitol in order to use it as the basis for charging President Trump, it would be an ex post facto law if applied to Trump. A law like that would have to already be on the books to apply to the January 6 speech. A new law would only apply to future speech.
I doubt that 18 U.S. Code § 2383 - Rebellion or insurrection, by itself, would be enough to indict an individual on without there being a larger entity like a state involved.
That's my take on it, and I invite Lawrence Tribe to call me an ad hominem because of it.
-PJ
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