Tribe’s Opinion That ‘EPA’s Clean Power Plan Is Unconstitutional’ Means More Than You Think

Published December 23, 2014

It’s a dead certainty that the Left will denounce Harvard constitutional law professor Lawrence Tribe for accepting a retainer from coal giant Peabody Energy to write an analysis concluding that “the EPA acts as though it has the legislative authority to re-engineer the nation’s electric generating system and power grid. It does not.”

It’s more certain that Tribe had concluded that before Peabody came knocking at his door with buckets of money. It’s even more certain that the EPA was not the primary target of Tribe’s wrath, but that it was aimed directly at his 1989 research assistant at Harvard Law School, Barack Obama.

That won’t make sense unless you know the back-story, and only a handful do. Among the hundreds of in-depth profiles I’ve done to expose the Left, Laurence Tribe is my favorite, but one I decided not to make public. And then Heartland Institute’s Joe Bast told me aboutTribe’s op-ed in the Wall Street Journal. It’s time.

Barack Obama got into Harvard Law School mostly because he was a “legacy,” the offspring of an alumnus: his father Barack Obama Sr., earned a master’s degree in economics from Harvard University. Harvard accepts 40 percent of all legacies that apply, but only 11 percent of all applicants.

In the spring of his first year at law school, Obama stopped by the office of Professor Laurence Tribe – recognized as the nation’s foremost liberal constitutional law scholar – about becoming a research assistant. Tribe rarely hired first-year students. An L1 – first year law student – doesn’t get a constitutional law class. But Tribe recalls “being struck by Obama’s unusual combination of intelligence, curiosity and maturity.”

He was so impressed in fact, that he hired Obama on the spot – and wrote his name and phone number on his calendar that day – March 31, 1989 – “for posterity.” (And no, he didn’t really know that posterity might be interested.)

Laurence Henry Tribe is not easily impressed. He literally wrote the book on constitutional law: he’s the author of American Constitutional Law, the most frequently cited treatise in that field, has argued before the U.S. Supreme Court at least 34 times, and is noted for his extensive support of liberal legal causes including environmental law.

Obama must have impressed Tribe with something more than his weird history of being born in Hawaii with an African father, his childhood in Jakarta with an Indonesian stepfather, and being raised by white grandparents who sent him to elite Punahou prep school in Honolulu and helped him through Occidental and Columbia universities.

Tribe had his own weird history. He was born in Shanghai, China, to Jewish immigrants from Europe. His father was Polish and had lived in the United States when very young, long enough to become a naturalized citizen in his early 20’s. Tribe’s mother was Russian, and considerably younger than his father. They met and married in her hometown in Soviet Russia in 1940.

Then Stalin’s massive 1941 deportation of ethnic groups including Jews forced them to Shanghai – luckily avoiding Siberia – where Laurance was born in October, just before Pearl Harbor and the Japanese occupation of Shanghai. The father, who was proud of being an American, irritated the Japanese, who put him in a concentration camp as a noncombatant enemy alien, leaving his infant son trapped in Shanghai’s French Quarter with his mother, stateless persons.

Young Laurance and mother were allowed only two visits with the father during all of World War II. After Hiroshima and Nagasaki, Tribe’s father was released and reunited with his wife and child. As an American citizen, the father obtained transport to San Francisco. The three Tribes left Shanghai in March, 1947 on the steamship SS General Gordon.

Laurance spoke only Russian when he arrived in America a little before turning six – back in Shanghai, he had been a bratty kid who refused to learn English in kindergarten – but once in San Francisco, he refused to speak Russian any more, and quickly learned English. He later went to Abraham Lincoln High School in San Francisco, became a naturalized United States citizen, graduated from Harvard College (1962, mathematics, summa cum laude), and earned his J.D. from Harvard Law School in 1966, magna cum laude, then worked for a while at the National Academy of Sciences, and finally became an assistant professor at Harvard Law School (1968), receiving tenure in 1972.

That beats Obama for weird by light years. And it proves anybody can become one of America’s preeminent constitutional legal scholars.

Tribe hired Obama for exactly the reasons he said: intelligence, curiosity, and maturity; because this icon of left-wing legal theories was preparing to write a fantastic paper that would require a diligent, observant, and daring researcher open to serendipity, the happy quality of finding more than you were looking for. Tribe was about to go out on a limb and wanted researchers who would go with him.

The paper would be titled The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics – which is the zaniest title you’ll find anywhere in the pages of the Harvard Law Review. It would argue that strict constructionist interpretations of the U.S. Constitution were obsolete, being based on the rigid old Newtonian world-view, and needed to be replaced by more modern relativistic notions of curved space and quantum physics concepts of indeterminacy, which would release judges from the original intent of the Founders.

The paper compared Einstein’s theory that space is curved by large masses (such as the sun) to Tribe’s theory that courts shape the cultural “space” of institutions with “massive” rulings (such as segregation). The point was that major court rulings build social institutions, change perceptions of morality, and unjustly displace some people in the process, just as the sun makes starlight curve around its mass and displaces it from what Newtonian physics expected. Therefore, old wrongs done by courts, government, and the Constitution itself – such as allowing slavery – should be repaired by new broad constructionist interpretations of the U.S. Constitution.

The paper also emphasized quantum theory’s discovery that the process of studying an object changes its behavior in unpredictable ways, and compared that to a court reaching into society with powerful rulings and creating unpredictable consequences – like post-Civil War Jim Crow laws that led to a century of black struggle for civil rights, replete with murders, riots, revolutionary movements, bombings, and assassinations. These, Tribe asserted, should be repaired by broad constructionist interpretations of the U.S. Constitution.

When the article appeared in the November 1989 Harvard Law Review, Tribe’s mix of his mathematical expertise with his legal intellect was recognized by the cognoscenti as not so far-fetched as it seemed, but cleverly breathing new life into old liberal arguments – and it did: nearly 200 law reviews and periodicals subsequently cited the article, and four courts have cited it.

In Tribe’s acknowledgments stood the name of Barack Obama for “analytic and research assistance.”  It guaranteed that Obama would graduate magna cum laude and got him selected in his first year at law school as an editor of the prestigious Harvard Law Review, of which he later became president.

The politically immature Obama learned more about the Constitution by helping Tribe research this sprawling 39-page, densely argued treatise – with its references to Supreme Court cases, court influences on society, the role of cultural anthropology, and the findings of physicists Stephen Hawking and Werner Heisenberg – than he would learn in his actual constitutional law class the next year.

He got to watch the mind of a brilliant left-wing legal icon at the height of his powers construct a sophisticated constitutional frame of reference that could be applied to government and achieve a Leftist revolution in the real world by legal means. The problem was that, when Obama gained the power to apply this knowledge, he didn’t use it to curve constitutional space, but to destroy the document in the fire of his dictatorial power lust. That, I assert, is something Laurence Tribe could not allow.

I cannot see Tribe’s reproachful headline as saying anything but this: “President Barack Obama, my prized student, acts now as though he has the legislative authority to re-engineer the nation’s electric generating system and power grid. He does not. Obama’s stolen authority – all of it – is unconstitutional.”

Perhaps I take Professor Tribe’s meaning too far. Perhaps he will enlighten us about my presumptions.

But until and unless he does, I stand by my story.