1 Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982).Google Scholar

2 Northeast Bancorp v. Board of Governors, 105 S. Ct. 2545 (1985).Google Scholar

3 J. Ely, Democracy and Distrust (1980).Google Scholar

4 See, praising the book, Ginzburg, 92 Harv. L. Rev. 340 (1978);see, criticizing it (from the right), Nagel, 127 U. Pa. L. Rev. 1174 (1979) and (from Critical Legal Studies), Tushnet, 78 Mich. L. Rev. 694 (1980).Google Scholar

5 H.R. 869, 97th Cong. 1st Sess. (1981), discussed at 61–62.Google Scholar

6 S. 951, 97th Cong. 2d Sess. (1982).Google Scholar

7 Brown v. Board of Education, 347 U.S. 483 (1954).Google Scholar

8 Brown v. Board of Education [II], 349 U.S. 294 (1955).Google Scholar

9 Truax v. Corrigan, 257 U.S. 312 (1921).Google Scholar

10 A good argument also could be made on behalf of his chapter on the Douglas Amendment and regional banking (at 138).Google Scholar

11 Tribe, The Puzzling Persistence of Process-based Constitutional Theories, 89 Yale L.J. 1063 (1980).Google Scholar

12 This was not uncommon. I know of no place in Constitutional Choices where Tribe reverses an earlier substantive position. Nevertheless, see infra text accompanying notes 82–96; see also infra note 44.Google Scholar

13 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).Google Scholar

14 Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983).Google Scholar

15 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).Google Scholar

16 Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978).Google Scholar

17 Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982).Google Scholar

18 461 U.S. 95 (1983).Google Scholar

19 National League of Cities v. Usery, 426 U.S. 833 (1976) overruled, Garcia v. San Antonio Metropolitan Transit Auth., 105 S. Ct. 1005 (1985). “National League of Cities [has been reduced by subsequent cases] to the status of a curiosity or a cry in the wilderness. Yet however bleak the future might appear for the New Federalism, one ought to await a more direct and less ambiguous signal before concluding that the Supreme Court is jettisoning a major constitutional doctrine” (at 136). Tribe misses, as much of the immediate journalistic commentary on Garcia missed, the fact that the so-called New Federalism is not based on National League of Cities but rather on the variety of jurisdictional doctrines—from Younger v. Harris, 401 U.S. 37 (1971) and its progeny to the revival of the Eleventh Amendment—that prevent federal courts from vindicating rights against the states.Google Scholar

20 San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973).Google Scholar

21 Tribe, Unraveling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services, 90 Harv. L. Rev. 1065 (1977).Google Scholar

22 456 U.S. 742 (1982).Google Scholar

23 Quoting Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1365 (1953).Google Scholar

24 74 U.S. (7 Wall.) 506 (1869).Google Scholar

25 74 U.S. (8 Wall.) 85 (1869) (holding that the Act denying appeal to the Supreme Court in McCardle left intact the power of the Court to review a lower court's denial of the writ of habeas corpus on a petition in the Supreme Court for habeas corpus and certiorari).Google Scholar

26 C. Fairman, Reconstruction and Reunion 1864–88: Part One 433–514 (1971). A summary appears in Powe, The Reconstruction Court, 50 Tex. L. Rev. 1468, 1469–72 (1972).Google Scholar

27 Even Fuentes v. Shevin, 407 U.S. 67 (1972), a major consumer protection decision preventing state agents from seizing a person's property upon ex parte application of a claimed creditor, is presented as a “fundamentally conservative decision”[!] whereby “the Court powerfully reinforced the protection of existing patterns of capital distribution provided by the ban on ‘spot redistributions’” (at 171).Google Scholar

28 449 U.S. 166 (1980).Google Scholar

29 Regents of the University of California v. Bakke, 438 U.S. 265 (1978).Google Scholar

30 Firefighter's Local Union No. 1784 v. Stotts, 104 S. Ct. 2576 (1984). Slotls is the only affirmative action case where the Supreme Court has held against the principle of affirmative action. Although by the time this review is in print Stolts may not seem so limited, it holds only that a district court exceeds its power under a consent hiring decree when it issues orders relating to layoffs.Google Scholar

31 450 U.S. 464 (1981).Google Scholar

32 Id. at 476.Google Scholar

33 An alternative way of seeing the problem is presented in the recent ACLU Report, Our Endangered Rights (N. Dorsen ed. 1984). In their essay, “Sexual Justice,” professors Estrich and Kerr argue that it was wrong for the dissenters in Michael M. to have assumed the male and female were engaging in the same “act.”“Given the reality that statutory rape prosecutions are commonly brought in nonconsensual situations—where the sexuality is neither free nor mutual but phycially or emotionally coerced by a stepfather or boyfriend—the argument is flawed.”Id. at 98, 115–16. That rather breathtaking assertion is not followed by even a “cf.” footnote suggesting its proof. See Tigar, Whose Rights? What Danger? 94 Yale L.J. 970,992 (1985).Google Scholar

34 M. Walzer, Spheres of Justice (1983).Google Scholar

35 See Bose Corp. v. Consumers Union, 104 S. Ct. 1949 (1984).Google Scholar

36 448 U.S. 297 (1980).Google Scholar

37 Crawford v. Board of Education, 17 Cal. 3d 280, 551 P.2d 28, 130 Cal. Rptr. 724 (1976).Google Scholar

38 393 U.S. 385 (1969).Google Scholar

39 Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). Tribe was losing counsel.Google Scholar

40 Tribe favorably recounts a story of “King Reid” Lefevre of the Vermont legislature, who once stated: “As I look around this chamber, it occurs to me that many of our members make their greatest contribution to the legislative process on days when they aren't here” (at 229).Google Scholar

41 I had expected to modify this conclusion when, on October 7, 1985, driving to work, I listened to an interview with Tribe by National Public Radio's Bob Edwards about Tribe's other new book, God Saw This Honorable Conn (1985), and about possible Reagan appointments to the Supreme Court. Tribe made the case that a single Supreme Court justice wields incredible power given the number of significant 5–4 decisions in our history. He then stated that no single elected official should have the power to select a person to wield such power. I agree with his substantive point, that Senate confirmation of a justice ought not be pro forma. I nevertheless find it nothing less than amazing that Tribe blithely concedes the power to mold our society to unelected judges and finds the problem to be their selection by an elected representative of the nation.Google Scholar

42 It will not be long, however, before this charge is likely to reverse as conservatives rush to their ideologically packed judiciary.Google Scholar

43 E.g., New York v. Ferber, 458 U.S. 747 (1982); Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981); FCC v. Pacifica Found. 438 U.S. 726 (1978).Google Scholar

44 Tribe admits that his treatise did nothing to dispel the myth (at 391 n.4).Google Scholar

45 Rabban, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514 (1981).CrossRefGoogle Scholar

46 Anastaplo, now a law professor at Loyola of Chicago, was excluded from the Illinois Bar because (1) he believed in the Declaration of Independence and (2) having so stated, refused to answer questions about membership in organizations on the Attorney General's list. His case, In re Anastaplo, 366 U.S. 82, 97 (1961), produced Justice Black's finest opinion.Google Scholar

47 Tribe does not mention it, but Frankfurter's timely stroke was instrumental. Had he stayed on the Court both NAACP v. Button, 371 U.S. 415 (1963), and Gibson v. Florida Legislative Investigating Comm.,372 U.S. 539 (1963), would have gone theother way. See B. Schwartz, Super Chief 450–53 (1983).Google Scholar

48 Ginzburg v. United States, 383 U.S. 463 (1966) (publishing a constitutionally protected magazine can be an offense when accompanied by pandering, even if no statute prohibits such actions).Google Scholar

49 United States v. O'Brien, 391 U.S. 367 (1968) (draft-card burning).Google Scholar

50 454 U.S. 290 (1981).Google Scholar

51 453 U.S. 114 (1981).Google Scholar

52 458 U.S. 886 (1982).Google Scholar

53 456 U.S. 212 (1982).Google Scholar

54 Powe, Mass Speech and the Newer First Amendment, 1982 Sup. Ct. Rev. 243.Google Scholar

55 456 U.S. at 226–27.Google Scholar

56 221 U.S. 418, 439 (1911).Google Scholar

57 Cohen v. California, 403 U.S. 15, 27 (1971) (Blackmun dissenting).Google Scholar

58 Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983).Google Scholar

59 461 U.S. 138 (1983).Google Scholar

60 461 U.S. 540 (1983).Google Scholar

61 There is little reason to cheer the creation of yet another category of public forums just as there is no reason to cheer a new tier in equal protection terms. (And not surprisingly, Justice Stevens, who consistently has questioned the justification for the latter, does so with the former.) What analysis in the so-called public forum arena needs is realization that (1) some types of speech are compatible with the government's use of its property and others are not and (2) once some speech is allowed, the government is under a duty to explain why other speech would be incompatible with the purposes to which the property is put. Thus speech can be more limited in prisons, Jones v. North Carolina Prisoners' Union, 433 U.S. 119 (1977), or on military bases, Greer v. Spock, 424 U.S. 828 (1976), than in mailboxes. Perry and Green-burgh Civic Associations were wrongly decided on their facts. So, too, was Cornelius v. NAACP Legal Defense Fund, 105 S. Ct. 3439 (1985), and see text accompanying text infra note 64. A useful article pointing in a similar direction is Farber & Nowak, The Misleading Nature of Public Forum Analysis, 70 Va. L. Rev. 1219 (1984).Google Scholar

62 454 U.S. 263 (1981) (university may not exclude student religious groups from using facilities when all other student groups may use facilities).Google Scholar

63 420 U.S. 546 (1975) (municipal theater could not exclude the musical Hair on grounds of belief it was not fit family entertainment).Google Scholar

64 105 S. Ct. 3439 (1985).Google Scholar

65 Perry was a 5–4 decision and Cornelius was 4–3, with two of Perry's dissenters, Justices Marshall and Powell, not participating. Since Justice Blackmun, who wrote the principal dissent in Cornelius, was in the majority in Perry, it may well be that he has changed his mind, not on the categories but on the circular reasoning that allows exclusion seemingly automatically to place a case in the new third category. If so, and if Justice Powell's vote in Perry was unrelated to his antiunion bias, then the next case in this line may well make more sense, although shucking the enterprise would be an even better idea. See supra note 61.Google Scholar

66 The government's brief to the Court stated that these and other apparent inconsistencies may have resulted from misapplication of its own eligibility criteria. As Justice Blackmun acidly noted, “it is strange that it could have misapplied its criteria almost 75% of the time.” 105 S. Ct. at 3463 n.5.Google Scholar

67 Consolidated Edison v. Public Serv. Comm'n, 447 U.S. 530 (1980).Google Scholar

68 Central Hudson Gas & Elect, v. Public Serv. Comm'n, 447 U.S. 557 (1980).Google Scholar

69 316 U.S. 52 (1942).Google Scholar

70 Cammarano v. United States, 358 U.S. 498, 514 (1959) (Douglas, J., concurring). Here, in the sole factual error I found in the book, Tribe makes Douglas the author of Valentine (at 210). For better or worse, the credit belongs to Justice Roberts.Google Scholar

71 CoUin v. Smith, 447 F. Supp. 676 (N.D. I11.), aff'd, 578 F.2d 1197 (7th Cir.), cert, denied, 439 U.S. 916 (1978).Google Scholar

72 “Before one martyrs oneself in the name of free speech on behalf of those who would make atrocity a virtue, one should at least pause to reflect upon the fact that martyrdom has always been stronger proof of the intensity than of the correctness of a belief” (at 219).Google Scholar

73 I regret that I cannot support this quote with a citation, but I heard Justice Douglas use the phrase often and am quite confident he did so publicly.Google Scholar

74 424 U.S. 1 (1976).Google Scholar

75 435 U.S. 765 (1978).Google Scholar

76 See Powe, supra note 54.Google Scholar

77 Tribe's treatise strikes a similar tone and takes a decidedly egalitarian perspective in criticizing Buckley v. Valeo, the only one of these cases decided at the time. L. Tribe, American Constitutional Law 800–813 (1978). Recently, in another forum, his remarks indicate that his tone of disapproval represents his views on the merits. He criticized the Court's decision in Federal Election Comm'n v. National Conservative Political Action Comm., 105 S. Ct. 1459 (1985), which invalidated a federal law limiting independent expenditures by political action committees, as “highly formalistic.” He felt NCPAC failed to heed the congressional conclusions about the distorting effect of spending on elections. Remarks at the U.S. Law Week Constitutional Law Conference, in Wasington, D.C., September 13–14, 1985, as reported in 54 U.S.L.W. 2196, 2204 (1985).Google Scholar

78 For an analysis of the split see Levinson, Regulating Campaign Activity: The New Road to Contradiction, 83 Mich. L. Rev. 939 (1985); see also Fleischman & McCorkle, Level-Up Rather than Level-Down: Toward a New Theory of Campaign Finance Reform, 1 J.L. & Pol. 211 (1984); BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 Calif. L. Rev. 1045 (1985).Google Scholar

79 With First Amendment scholars hugging the sidelines, Judge Wright has been the foremost proponent of limiting the ability of the wealthy to use the mass media. E.g., Wright, , Money and the Pollution of Politics, 82 Colum. L. Rev. 609 (1982); id., Politics and the Constitution: Is Money Speech? 85 Yale L.J. 1001 (1976). I have taken the opposing view, Powe, supra note 54, and am not unaware of the considerable dissent from my views even if the dissent does not appear in the pages of legal journals. Tribe, too, has that “approving footnote” (at 394 n.46).Google Scholar

80 Miami Herald v. Tornillo, 418 U.S. 241 (1974) (newspaper may not be required to publish anything). At the 1985 U.S. Law Week Constitutional Law Conference, supra note 77, Tribe indicated support for Tornillo. 54 U.S.L.W. at 2204.Google Scholar

81 Supra note 12.Google Scholar

82 What follows was sparked by Bryden, Between Two Constitutions: Feminism and Pornography, 2 Const. Commentary 147 (1985).Google Scholar

83 Roth v. United States, 354 U.S. 476 (1957).Google Scholar

84 Memoirs v. Massachusetts, 383 U.S. 413 (1966).Google Scholar

85 Miller v. California, 413 U.S. 15 (1973).Google Scholar

86 L. Tribe, American Constitutional Law, supra note 77, at 661–62.Google Scholar

87 Id. at 668.Google Scholar

88 Id. at 669–70.Google Scholar

89 MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. Civ. Rts.-Civ. Lib. L. Rev. 1, 21 (1985).Google Scholar

90 Although it does present the novel embrace by the left of many of the premises of the right.Google Scholar

91 American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (Easterbrook, J.), aff'd, 106 S. Ct. 1172 (1986).Google Scholar

92 Bryden, supra note 82, at 180, reproducing Tribe's letter.Google Scholar

93 Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585 (1975).Google Scholar

94 L. Tribe, American Constitutional Law, supra note 77, at 13–14. The same point is made in Constitutional Choices, especially in chs. 2 & 3.Google Scholar

95 Tribe letter, supra note 92.Google Scholar

96 Id.Google Scholar