CONSTITUTIONAL ARGUMENTS stand or fall on their merits. That principle is as old as the Republic, but a recent debate suggests that it is worth restating. The issue is the constitutionality of the EPA’s Clean Power Plan, with Harvard law professor Laurence Tribe arguing that the EPA’s proposed actions would violate constitutional principles of separation of powers and federalism, and might require just compensation payments to energy companies; his critics vigorously dispute each of Tribe’s claims. But it is not the substance of their disagreement that has caught our attention.
The great Chief Justice John Marshall wrote in 1805 that in debate over “any political proposition,” an individual’s judgment will be greatly “influenced by the wishes, the affections, and the general theories of those by whom” it is to be discussed and decided. He might have added that less dignified, self-interested motives can be at play as well. The “political proposition” Marshall had specifically in mind was whether federal legislation creating a national bank is constitutional, a question hotly debated in the early Republic but one as to which Marshall had no doubt whatever about the right answer (yes, emphatically). But however obviously correct he thought that answer, Marshall insisted “a contrariety of opinion on this great constitutional question ought to excite no surprise.” In private, Marshall harbored dark suspicions about the motives of the bank’s greatest constitutional opponent, Thomas Jefferson, but he did not regard his suspicions as relevant to public debate.
On its face, the lawfulness of the Clean Power Plan seems just the sort of “great constitutional question” Marshall had in mind. The issues of environmental protection and energy independence are certainly big enough, and people care deeply about the Clean Power Plan and its legality, not just as lawyers doing responsible professional work but also as citizens caring for the community and the future. To borrow Marshall’s words, it “ought to excite no surprise” that Tribe and others have found themselves at times using language that is more emotive than exact. When Tribe associates the EPA plan with “burning the Constitution,” or his critics attack his positions as a catastrophe for environmental protection, they are speaking passionately as citizens rather than precisely as lawyers. For our part, we are glad they are concerned about the plan, and the rest of us need to allow for the hyperbole and emotional coloring that is inseparable from healthy political debate. But we can and should emulate Marshall and draw a line between public critique, however vigorous, and the public invocation of private suspicions.
With regret, we think some of Tribe’s critics are not following Chief Justice Marshall’s example. Alongside efforts to spell out why they disagree with Tribe’s positions, several critics have described his constitutional claims as “baseless,” and “wholly without merit,” and repeatedly noted that Tribe represents an energy company in ongoing litigation with the EPA, an apparent attempt to show that Tribe’s motives for making his arguments are financial. But few will be any closer to understanding the issues, or deciding who is more persuasive, after absorbing the innuendo.
Not all of us have reached professional opinions of our own about whether Tribe or his critics are right on the merits: The issues involve technical questions of law that require close study. But all of us agree that Tribe’s arguments are strong enough to merit careful consideration even apart from their distinguished source. In any event, we do not doubt Tribe’s motives for making his legal and constitutional claims, and we are convinced that his motives for making the arguments he has made — of which the critics surely know no more than we — are completely irrelevant to public debate over the lawfulness of the EPA Plan.
The reasoned debate over fundamental principles that is at the heart of constitutional law is of inestimable value to all Americans, and unites us even as it enables us to bring our passionate political disagreements to the bar of reason. As citizens, we think we would all do better to avoid attempts to ridicule the ideas and besmirch the good faith of those with whom we disagree. We would put it even more strongly with respect to those of us whose vocation lies in the law: For us, constitutional debate through reason, not innuendo, is a duty.
Alan M. Dershowitz is professor emeritus at Harvard Law School. Neal K. Katyal, former acting US solicitor general, is professor of national security law at Georgetown University Law Center. Theodore B. Olson, former US solicitor general, is partner at Gibson, Dunn & Crutcher. H. Jefferson Powell is professor of law at Duke University.