Legal Scholars

"We... devote... Chapter five to the proposition that there is too much loose impeachment talk, and we think that impeachment... needs to be cautiously and carefully approached."

"Impeachment is a political process, but it has a legal frame of reference... [O]ne of the things we try [very hard] to do in our book... is explain how law and politics interact in this process, and... if you forget the political side, you're going to make a terrible set of blunders. But if you ignore the legal side, you're going to risk destroying the Constitution and the country. I agree, from a strictly partisan, political point of view... that letting Trump basically do himself in and make all kinds of terrible blunders, (and there seems to be a new one every day with this crazy pardon or a completely weird imposition of a tariff that will lose American jobs) that he will make things worse and worse... for himself. But the Constitution we have is a fragile device and if in the course of doing that, he defies judicial orders... He says he might defy an order to submit to a , which would be a first in American history... basically presidents are subject to subpoena, but if he is subpoenaed and as his lawyers said in a memo... he says "No, the president is above the law, above the subpoena power." Then, even though it might be politically wise to just do nothing, we would be breaking faith with the constitution to essentially go back to a system where someone is king. ...Tyrants don't easily give up power, and if we simply let this guy get away with anything, and say, "Let's wait til 2020." It may be too late by 2020 to restore a constitutional democracy under the rule of law."

"A subpoena was issued to Richard Nixon to turn over his tapes. He made the argument that you can't subpoena a sitting president... He lost... in the U.S. Supreme Court in the famous... Nixon tapes case. In ', Bill Clinton made the argument that you can't make me testify, and it looked like that was going to go nowhere, so he finally relented and testified "voluntarily." ...[T]he argument that is made in... a memo [to Robert Mueller]... It's basically written to a kind of gullible, nonlegal public. It doesn't make any genuine legal arguments. In fact, there's a rather frightening statement... that it doesn't matter how corrupt the president's motives are. He can do anything with the Department of Justice, as though it's his own private law firm. It says, "I can even use the pardon power." Well, of course he can use the pardon power as a way of showing mercy to people, but he's begun using it as what I have called a giant and loud elephant whistle, basically telling people, "If you have my back and don't cooperate with the investigations into what Russia did, and what I did, and what I knew and when I knew it, I'll have your back." ...[I]t almost sounds like he's saying that he can pardon himself, and thereby evade impeachment. Well, first of all, the impeachment clause itself says that the pardon power does not extend to cases of impeachment. But if all he means is that he can pardon himself so that when he is out of office he can't be convicted, I think he's confusing himself with vice president Pence. Pence can pardon him if he leaves office, the way Ford pardoned Nixon, but as I show in an article with and others, the self-pardon is ruled out by the structure of the Constitution. The President can say, "Pardon me" if he steps on your toes, but he can't say "Pardon me" as an exercise of official power. That would be the height of regal arrogance, and we don't have a king, we don't have an emperor. In fact, one of our complaints in the Declaration of Independence against King was that he was using his royal prerogative to obstruct justice. Well, if this president thinks that obstructing justice in order to corruptly avoid discovering the truth is within his absolute authority, I think he's got a lesson to learn, and I think the American people will teach it."

"[Social media companies] are private platforms. They have... as much right as Bloomberg or as The New York Times... to decide whom they will allow to use their platform. There is no first amendment right to use private property or a private platform to get your views out, and if your views are causing violence and death, the private platform itself ought to be held responsible for not taking you off."

"I'm not comfortable with there being no restrictions. I'm a member with and and others of... the Real Facebook Oversight Board. I think the government should put some limits on them partly because they're so powerful. That does not mean that anybody who wants to has the right to use the platform. The limits are limits that have to be consistent with the first amendment restrictions on the government, but we can't simply transform these platforms into... places that anybody can use, when they are... privately owned, however powerful, however large."

"[A] governmental regime of guidelines which have to be followed, which do not involve private restraints because they would not enjoin any speech in advance. Those guidelines need to be in place so that we don't unfairly surprise the owners of Facebook, or other platforms, or Twitter, but... avoiding the ex-post facto effect of imposing rules after the fact is not the same as violating the doctrine, which basically says you can't muzzle people in advance."

"The Environmental Protection Agency’s proposal to limit carbon pollution from the electricity sector is the centerpiece of the President’s plan to address climate change, and the foundation for U.S. leadership on an international climate agreement. In an effort to kill the rule, the industry has shrewdly hired Larry Tribe, our Harvard Law School faculty colleague and perhaps the nation’s most famous constitutional law professor, who is arguing on their behalf that the rule is unconstitutional. Like most proposed rules, the Administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless. Were Professor Tribe’s name not attached to them, no one would take them seriously."

"To many Democrats and professors at Harvard, Mr. Tribe is a traitor. "The administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless," ... and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe’s brief on the Harvard Law School website."

"He helped argue that being ordered to clean up hazardous waste sites on the Hudson River was a violation of its constitutional rights. He aided Pacific Gas and Electric in complex bankruptcy proceedings, and defended Nike in a suit that claimed the company was lying about its sweatshop practices. Tribe also helped and the fight common-law claims related to global warming. More recently, he assisted a hedge fund named Bulldog Investors in trying to block the enforcement of certain securities laws; his argument was based, in part, on the idea that such laws violated the fund’s First Amendment rights. In the nineteen-nineties, he worked on multiple cases helping the Bell companies companies try to avoid or nullify telecommunications regulation, and in the 2009 he helped fight net-neutrality rules, based on a theory of corporate First Amendment rights. In short, Tribe's representation of Peabody Energy is nothing new. It is rather representative of his work over the past two decades."

"Tribe has taken a strong view of individual rights; his view of corporate rights is similar... It seems much harder to swallow the idea that Tribe’s paid work... is properly viewed as work in the public interest..."

"for work to be considered in the public interest, it ought to be, at least in part, on behalf of clients who are in some way underrepresented, or present views that would not be heard. This is true of some of Tribe's work; but in much of it he is empowering the powerful."

"Nothing is more devastating than a life without liberty. A life in which one can be forced into parenthood is just such a life. Rape is among the most profound denials of liberty, and compelling a woman to bear a rapist's child is an assault on her humanity. How different is it to force her to remain pregnant... because efforts at birth control accidentally failed?"

"[T]he framers had derived the conviction that human rights could best be preserved by inaction and indirection—shielded behind... deliberately fragmented centers of countervailing power, in a vision almost Newtonian..."

"That all lawful power derives from the people and must be held in check to preserve their freedom is the oldest and central tenet of American constitutionalism. ...[I]t was believed that personal freedom could be secured more effectively by decentralization than by express command."

"[T]hese models are not... mutually exclusive... discourse in any given period can... draw on... more than one model. ...Their main function is . ...[T]he models ...grow out of immersion in judicial decisions and lawyers' arguments ...[T]hey should be ...familiar themes ..."

"The models... (I) separated and divided powers; (II) implied limitations of government; (III) settled expectations; (IV) governmental regularity (V) preferred rights; (VI) equal protection; and (VII) structural justice."

"I... organize the constitutional principles, rules, and theories... in terms of the seven basic models that... have represented the major alternatives for constitutional argument and decision in American law from the early 1800s to the present."

"[T]he Constitution is an historically discontinuous composition... the product... of a series of not altogether coherent compromises; it mirrors no single vision or philosophy but reflects instead a set of sometimes reinforcing and sometimes conflicting ideals and notions."

"[T]he conventional ways even of stating the choices between greater freedom or equality, on the one hand, and greater governmental power, on the other... and particularly the conventional emphasis on "balancing interests"... are remarkably unilluminating as well as misleadingly ahistorical."

"Given its remarkable activism in constraining the President vis-à-vis Congress and the courts and in limiting Congress vis-à-vis the States, the current Supreme Court cannot be understood as pursuing a modest institutional role. ...I prefer postulates honestly expressed to analyses whose underlying assumptions are obscured by the jargon of neutral principles and the language of "objective" legal description."

"[A]ttempts to treat constitutional doctrine neutrally elide important questions and obscure available answers."

"[T]he morality of responsible scholarship points not at all to the classic formula of supposedly value-free detachment and allegedly unbiased description. Instead such morality points to an avowal of the substantive beliefs and commitments that necessarily inform any account of constitutional arguments and conclusions."

"[T]he highest mission of the Supreme Court... is not to conserve judicial credibility, but in the Constitution's own phrase, "to form a more perfect Union" between right and rights within the charter's necessarily evolutionary design."

"The inescapable boundaries of societal context and consciousness argue... that [judges] must raise distinctive voices of principle."

"Judicial neutrality necessarily involves taking sides. ...[J]udicial restraint is but another form of judicial activism."

"[T]he Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and government practices."

"[T]he courts that held slaves to be non-persons, separate to be equal, and pregnancy to be non sex-related can hardly be deemed either final or infallible."

"[T]hat speech... was political genius but jurisprudential danger, because he created an impression that Robert Bork really liked the idea of coat-hanger abortions, that he liked the idea of racial separation of neighborhoods, whereas the fact is that Bork’s philosophy might have led to many of those consequences, but to demonize him the way my friend Ted Kennedy did I thought was going to work politically, but something that people would come to regret later. And, of course, I think that’s what happened, because it rallied a lot of academics and scholars and moderates to Bork’s side, thinking that he had been improperly caricatured..."

"Now the country is faced with a president whose conduct strongly suggests that he poses a danger to our system of government. ...[I]mpeachable offenses could theoretically have been charged from the outset of this presidency. ...One important example is Trump’s brazen defiance of the ...The question of Russian interference in the presidential election and possible collusion with the Trump campaign go to the heart of our system and ability to conduct free and fair elections. ...[R]eporting suggests... the... sinister, with Trump insisting that Comey pledge "loyalty" to him in order to retain his job... the president turned to Twitter with a none-too-subtle threat that Comey would regret any decision to disseminate his... conversations... Nixon’s... list of actions... deemed... impeachable obstruction reads like a forecast of... Trump... misleading statements to, or withholding material evidence from, federal investigators or... employees; trying to interfere with FBI or congressional investigations; trying to break through the FBI’s shield surrounding ongoing criminal investigations... [T]he crucial thing is that the prospect now be taken seriously, that the machinery of removal be reactivated, and that the need to use it become the focus of political discourse..."

"If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don't need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, she's not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalio/Thomas wing of the Court."

"So the written Constitution, the one we can see, fails to tell us just what's in it and what's not."

"For those whose minds are made up, this book offers a window into the way the "other side" sees... of why you have not been able to persuade opponents... insights into what they believe and... why."

"[W]e may... find more common ground than we currently imagine."

"This book must... touch... deep and difficult questions about birth and death... life and its inception... sexuality and gender, about distribution of power."

"This is... a book about morality. By offering several perspectives... some rooted in philosophy, some... in science and technology, we may come to see new ways to understand..."

"Since it first came before the Supreme Court... abortion... has been about the Constitution. Whom does it protect? How do we decide..?"

"This book challenges the inevitability of permanent conflict... and tries to lay the groundwork for moving on."

"Since it was judges who had read abortion rights into the Constitution, abortion opponents believed, we needed judges who would read abortion back out... [S]ome urged a that would... have prohibited abortion or... at least have returned the question to each state's legislature, but... consensus and effort... proved elusive."

"The political stage is... dominated by... well-rehearsed and deeply felt arguments, on either side... The debate is unending. ...[S]ingle-issue campaigning has ...distorted ...national elections. The losers will be the democratic process and the American people."

"[T]he woman's right to decide for herself... is now subject to regulation, and possibly even prohibition, by our elected representatives. ...Even as the public agenda is stretched to address... questions as the , no issue threatens to divide us politically in... as powerful a way as the abortion issue..."

"Who knows the names of the countless women who have died from painful and illegal abortions? What of the names of the countless babies who would have been born..."

"If forcing a woman to continue a pregnancy that will almost certainly kill her is impermissible, how different... to compel... a pregnancy that will probably shorten her life? Or... that will leave her life in shambles?"

"This book is about a clash of absolutes, life against liberty. No right is more basic than the right to live. ...If infanticide is wrong, is the destruction of a fetus at eight months of , or at five, any different?"

"Governmental subsidies to "major" political parties... or failure of state governments to provide funds to compensate school districts lacking "rich" property tax bases, are government actions that affirm some aspects of the status quo as inevitable. Such... are at present constitutional... Unable to support a challenge to such... power, a truly procedural... theory seems doomed... for without such challenge government may well be able to shape the "will" of the governed in the image of those who govern, reducing consent and representation to all but empty ideals."

"The state shapes the society as much as the society shapes the state..."

"[I]t is puzzling that purely process-based approaches—designed to deny the need for, and legitimacy of... substantive theory—should... continue to find... articulate proponents and persist in attracting... adherents."

"The crux of any determination that a law unjustly discriminates against a group... is... that the law is part of a pattern that denies those subject to it a meaningful opportunity to realize their humanity. ...[S]uch an approach must look beyond process to identity and proclaim fundamental substantive rights—including substantive rights to participate on equal terms in the evolution of law and policy. ...[I]mportant aspects of constitutional law, including the determination of which groups deserve special protection, can be given content in no other way."

"One cannot speak of "groups" as though society were objectively subdivided... Instead, people draw lines, attribute differences, as a way of ordering social justice—of deciding who may occupy what place, play what role, engage in what activity. Thus, in order to justify the role of chattel that blacks initially played in our society, we may have differentiated that role by describing it in terms of the most obvious distinguishing feature... equating race and role. This equation and thus "group" survived the Civil War and the Thirteenth Amendment... simply by reason of confusion or inertia, but because the role that society allowed remained partially unchanged; thus, the need to justify the role by differentiating it, by seeing not the role but the group—"inferior" blacks capable of nothing better...—persisted."

"[G]overnmental action that burdens groups effectively excluded from the process is constitutionally suspect. In its most sophisticated form, the resulting judicial scrutiny is seen as a way of invalidating governmental classifications and distributions that turn out to be motivated either by prejudiced hostility or by self-serving stereotypes."

"The question whether individuals may insist on being heard by rulemakers, for whom they already (directly or indirectly) voted, has bedeviled administrative law since the turn of the century."