[Congressional Record (Bound Edition), Volume 153 (2007), Part 13]
[House]
[Pages 18893-18894]
[From the U.S. Government Publishing Office, www.gpo.gov]




              DR. BERNARD SIEGAN: RECLAIMING A REPUTATION

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from California (Mr. Rohrabacher) is recognized for 5 
minutes.
  Mr. ROHRABACHER. Mr. Speaker, today I rise to correct the record 
concerning a great economist and friend, the late Dr. Bernard Siegan, a 
distinguished professor of law at the University of San Diego. In 1988 
Dr. Siegan was nominated by President Ronald Reagan to the U.S. Court 
of Appeals. He promptly came under personal attack, most notably from 
Professor Lawrence Tribe of Harvard University.
  Tribe wrote a public letter on May 28, 1987, to Senator Joseph Biden 
belittling Dr. Siegan as being outside the mainstream of American 
jurisprudence. Tribe further asserted that Dr. Siegan ``reveals himself 
to be not a judicial conservative but an ideologue of the right, one 
who would deploy the Constitution in service of a conservative economic 
philosophy.''
  In a widely quoted section of his letter, Professor Tribe assailed 
Dr. Siegan's support of the Brown v. Board of Education ruling as ``a 
component of the right to travel, a right long secured by the Federal 
courts,'' which was, of course, Dr. Siegan's reason for supporting 
Brown v. Board of Education.
  At the time Professor Tribe claimed that this legal view was 
``tortured'' and part of ``Mr. Siegan's radical revisionism.'' At the 
conclusion of the letter, Professor Tribe wrote, ``The notion that it 
is a black child's freedom to `travel' onto the school grounds that 
segregation laws infringed is so bizarre and strained . . . as to bring 
into question both Mr. Siegan's competence as a constitutional lawyer 
and his sincerity as a scholar.'' This type of assault was typical of 
the attacks which preceded the defeat of Dr. Siegan's nomination. That 
was back in 1987. And much has changed since then.
  By the time that Dr. Siegan died in March of 2006, he had many books 
and speeches and articles that made him one of the most prolific and 
respected legal and constitutional scholars on the political right. He 
is today credited with being a father of the recurrent rejuvenation of 
property rights theory in law.
  In response to Dr. Siegan's defense of his views regarding Brown v. 
Board of Education, Tribe replied in a letter to Dr. Siegan's wife, and 
this was September 6, 1991: ``I have reconsidered my description of 
your analysis of Brown v. Board of Education in footnote 10 on page 
1379 of the second edition of American Constitutional Law. I agree with 
your general approach that Brown can be justified by arguing from the 
`liberty' component of the 14th amendment . . . ''
  Now, that was a letter sent to Siegan years later by Dr. Tribe and 
when Dr. Tribe and Dr. Siegan were corresponding. These letters were 
found by his wife, Shelley. Tribe in that same letter writes: 
``Although I do not reach the same conclusions you do, the issues you 
raise are important enough to be worthy of scholarly discussion. I am 
now in the process of drafting a rather substantial supplement to my 
treatise summarizing recent developments in constitutional law. In my 
discussion of the equal protection clause, I will include a citation to 
your book that I am sure will please you more than the citation did in 
the last book.''

                              {time}  2245

  Unfortunately for the public reputation of Dr. Siegan, Professor 
Tribe never did complete the supplement to his treatise, and Dr. 
Siegan, of course, passed away after that exchange of letters.
  Mrs. Siegan wrote to Professor Tribe after discovering these letters 
and asked Dr. Tribe for information on the planned, but not completed, 
supplement. She also asked the following question: ``In the 19 years 
since you penned your letter to Joe Biden, I wonder if you have 
reconsidered your comment regarding Bernie's competence as a 
constitutional lawyer and a serious scholar?'' Tribe replied to Mrs. 
Siegan on September 21, 2006. ``Please permit me,'' he wrote, ``to 
apologize to you here for the unnecessarily ad hominem character of 
what I wrote to Senator Biden in May of 1987. To help correct the 
record, if only posthumously, I am sending a copy of this letter to 
Senator Biden. Despite the differences in our perspectives,'' he said, 
``I came to think of Bernie, just as you write that he thought of me, 
as a colleague in the profession we both truly love and consider to be 
one of the noblest.''
  I would submit the rest of this statement for the Record and note 
that Lawrence Tribe has set the Record straight, and now the Record is 
straight on the great person and great scholar that Dr. Bernard Siegan 
was.
  I am sorry to have caused him, or you, any distress, and am grateful 
for the opportunity your letter afforded me to set the record straight 
as best I could at this late date.
  Mr. Speaker, the correspondence between Professors Bernard Siegan and 
Lawrence Tribe and the subsequent correspondence between Shelly Siegan 
and Professor Tribe tell

[[Page 18894]]

us much about the ugly period of personal attack this country 
experienced during the judicial nomination hearings of the 1980s.
  A review of the above cited letters makes it clear that Professor 
Bernard Siegan was a distinguished and respected scholar and champion 
of personal liberty and private property. Contrary to assertions made 
during his nomination hearings in 1987, Professor Bernard Siegan would 
have made an excellent addition to the Ninth District Circuit Court of 
Appeals. And now the record is set straight.

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