The life of a columnist is a feast of ironies, but rarely is one served a meal quite as sumptuous as the one just cooked up by Laurence Tribe, Harvard Law School professor and leading liberal constitutional scholar.
On July 15, Tribe took to The New York Times to share with us his anxieties about Supreme Court nominee Clarence Thomas.Thomas, it seems, is not a traditional conservative, meaning a judicially restrained one who believes that a judge's job is to interpret the law, not make it. It seems Thomas is a more radical kind of conservative.
Instead of just sticking to the Constitution and nothing but, Thomas believes in "natural law" as another source of rights beyond the Constitution.
And, as a guide to understanding natural law, Thomas invokes the Declaration of Independence, which, for example, speaks of life, liberty and the pursuit of happiness as inalienable rights.
Under such a theory of natural rights, Tribe warns, a judge could ban everything from abortion counseling to minimum-wage laws. Nothing less than the "fate of self-government in the U.S.," it seems, is threatened by Thomas' kind of judicial activism.
The first oddity of this critique is that today, for the purposes of the Thomas nomination, a traditional conservative seems to be a good conservative.
Of course, the last time a principled judicial restraint conservative, Robert Bork, was nominated for the court, Tribe led the pack that savaged him.
The greater curiosity is the charge of judicial activism. Coming from Tribe, this is hilarious. Tribe is one of the great defenders of the idea of reading the Constitution, shall we say, expansively.
When the liberal court of the '60s and '70s minted new rights, year in, year out, he applauded.
When, for example, Roe vs. Wade purported to find the right to abortion in the Constitution - or, to be more precise, in the penumbral emanations of the Constitution - that was good constitutionalism because it fit nicely with Tribe's view that "to conscript a woman to carry a fetus to term within her . . . is a unique and most fundamental invasion of her constitutional liberty."
As Judge Richard Posner writes, Tribe's "method is to use the skills of a lawyer to make political choices for society in the name of a fictive constitution, as if the Supreme Court really were a superlegislature and government by lawyers had, at last, arrived."
Liberal lawyers, that is.
Now that liberals have lost control of the court, they are shocked - shocked! - that judges might go beyond the letter of the Constitution and apply concepts like natural law through which they might legislate.
Now that the tables are turned, liberals would like us to believe that only constitutional literalism is permitted.
It gets funnier. Tribe's concern is that Thomas "might seek to replace Roe not with a system that strengthens states' rights," but one that denies the states' right to permit a legal abortion.
Tribe is terribly concerned that "Thomas has already dismissed talk of states' rights as a `constitutional sideshow.' "
It has been a while since a champion of liberal jurisprudence stood up for the notion of states' rights, the old segregationist cry, but it is refreshing. And late.
Where was Tribe's concern for states' rights under Roe, which effectively deprived the 50 states of any say in the matter of abortion?
Tribe, born-again defender of states' rights, warns darkly that with the Thomas nomination "the power of Congress and of every state and local legislature hanging in the balance."
It is touching that Tribe should be so concerned with judicial encroachment on legislative powers. Only four years ago he was ridiculing the idea of "judicial restraint" as a "political buzzword."
The history of the liberal jurisprudence he has spent his career justifying is the history of one judicial usurpation after another, each made over and above and against "the power of Congress and of every state and local legislature."
For liberals now to champion the power of every state and local legislature, after having spent 40 years championing the right of the unelected judiciary to force states and localities to raise taxes, reform prisons, bus children, hire by race and permit abortion is world-class chutzpah.
And what exactly is Thomas' offense? Whether a judge calls what he believes natural law or something else, every justice brings a certain intellectual structure and understanding of rights to his interpretation of the Constitution.
Thomas is simply more ingenuous than most: He spells out what it is he appeals to - the classical tradition of natural law and the explicit words of the Declaration of Independence.
The nation is far safer entrusting its future to such a justice than to the kind that pulls new rights out of a hat and declares them penumbral emanations.