Volume 73, Number 6

December 1998

Against Free-Form Formalism

David M. Golove

In this Article, Professor Golove responds to Professor Tribe on the latter’s own terms by offering a serious textual and structural analysis of the Treaty Clause that supports its nonexclusivity. Professor Golove shows that the constitutional text is in fact indeterminate and that, contrary to Professor Tribe’s claims, textualism cannot render a singularly persuasive construction of the Treaty Clause. By analyzing each of Professor Tribe’s arguments, Professor Golove shows that equally strong formal arguments can be constructed in favor of the nonexclusive reading. Professor Golove thus seeks to demonstrate by illustration that textualism is just as open to manipulation as the interpretive methodologies that Professor Tribe decries and, given the pervasive ambiguities in the text, is generally incapable of yielding unique, objective resolutions to constitutional disputes, even those over concrete provisions of the text. Only by systematically ignoring these equally plausible formalist counterarguments was Professor Tribe able to reach his favored reading of the Treaty Clause. In the final analysis, Professor Tribe’s article reflects free-formism in its most paradoxical form: free-form formalism.