Obama's View of the Constitution Hinted in Article

Is Barack Obama a space cadet? The man who would become senator of Illinois and a top Democratic presidential contender was credited for editorial or research assistance in a page-one footnote of what may be the zaniest-titled article ever published by the Harvard Law Review: "The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics," authored by noted legal scholar Laurence Tribe.

The 39-page densely argued treatise — think "The Paper Chase" meets "Star Trek" — argues that constitutional jurisprudence should be updated in a similar way that Einstein's theory of relativity replaced Newtonian mechanics, a view that would release judges from the original intent of the Founders of America. Published in 1989, with help of the much younger and politically greener Mr. Obama (a few others are also thanked in that footnote), the article is sprawling with references to cultural anthropologist Clifford Geertz and physicists Stephen Hawking and Werner Heisenberg.

In 1990 Mr. Obama became the first black president of the Harvard Law Review. The long-ago article could indicate his views on the Constitution, which, if he is elected, could come into play in such matters as his choice of nominees to the Supreme Court.

One current member of the high court, Stephen Breyer, once called the article a close second to Mr. Tribe's even more intriguingly titled article involving the "Fourth Discontinuity." A professor of physics at Harvard, Gerald Holton, told The New York Sun that Mr. Tribe's use of physics in the article was challenging and brilliant. "Elegance," Mr. Holton said, is "something you perceive and remember."

But others are decidedly less enthusiastic.

"Oy vey," said a professor of jurisprudence at Princeton University, Robert George. "Constitutional law is not that complicated. There's just no need to complexify this," he said, adding that if one makes such discussion so abstruse that only highly trained academic specialists — "let's call them legal physicists" — can understand, then ordinary citizens would feel that evaluating legal decisions is beyond their ability.

According to Newtonian physics, objects in the universe are like isolated billiard balls colliding with one another in empty space. But in an Einsteinian universe, objects affect and curve space. For Mr. Tribe, the social and legal worlds cannot be separated. Law is not just a backdrop but a part of the action. In bumper sticker terms, one might say, "No judge is an island." In another paper, Mr. Tribe wryly calls the jurisprudential move from Newton to Einstein a "metaphor-phosis."

Mr. Tribe employs this analogy to argue for a more expansive view of what constitutes governmental action. He examines legal cases involving child abuse, suburban white flight from suburbs, and abortion, asking what the state's role was in shaping the legal environment.
A Yale-trained lawyer who earned his Ph.D. in mathematics at New York University, Elisha Kobre, said Mr. Tribe is "making a reasonable — but debatable — legal point that courts should intervene not only when government directly infringes individual rights but also when people are adversely affected by existing social structures that he asserts have been created or perpetuated by the government." Mr. Kobre added that while Mr. Tribe's physics analogy did not particularly add to or enlighten a point that others have made before, it was nice to see a lawyer managing to incorporate ideas of science into legal theory.

Whether James Madison and the other Founders would have had such a benign view of Mr. Tribe's theory is another matter, though.
Like a Harvard Law School predecessor, Roscoe Pound, who had studied botany at the University of Nebraska, Mr. Tribe comes highly prepared in science. His career trajectory includes graduating summa cum laude in mathematics from Harvard and working for the National Academy of Sciences before joining the Harvard Law School faculty.

In the article in which Mr. Obama was among those thanked, Mr. Tribe argues that the nuanced post-Newtonian view does not predetermine answers but can help ask better questions. He also argues that the Einsteinian outlook is not necessarily tilted toward "liberal outcomes."

But Heisenberg's uncertainty principle can be a challenge to textualism, a theory that says that ordinary meaning of words should govern interpretation.

Mr. Tribe writes that "the interconnectedness of legal events" requires "abandoning any notion that the ‘objective' picture of the legal universe is the one seen from the vantage point of those who make legal decisions." The article cites Harvard legal philosopher John Rawls's "veil of ignorance" to the effect that fairness means looking at things from the view of "those on the bottom of the social ladder."

In January, the article's mention in the Harvard Crimson spurred a lively exchange on Harvard economics professor Greg Mankiw's blog. Someone writing under the name "FKLM," asserted, "Physics has absolutely no application to law." Another named "Curmudgeonly troll" rejoined, "Economists think they can apply economics to any issue, so why not?" A third named "Boomerang" wrote that analogies were powerful tools for making arguments and "breaking out of old frameworks and thinking and stepping into new ones."

Nearly 200 law review and periodicals have cited the article since its publication, including ones with titles such as "The Algebra of Pluralism: Subjective Experience as a Constitutional Variable" and another involving Asian American legal scholarship and "narrative space." Four courts have cited the piece. The U.S. Appeals District court's second circuit, in One was in a patent dispute over telemarketing equipment, where it was cited in discussing the uncertainty that results regarding how attorneys can influence expert opinions by deciding what to disclose to them about the case. The judge in Perkins v. Londonderry Basketball Club, a court of appeals case in the 1st Circuit, likewise cited the article. That case involved the question of whether the 14th Amendment was violated by barring a girl player from a basketball tournament.

If Mr. Obama captures the White House, he might not curve space but may settle for setting aside a high-altitude seat on the Supreme Court for his former teacher, Mr. Tribe, who is the Carl M. Loeb University Professor at Harvard.