The Invisible Constitution

The topic of constitutional law is obviously broad and cannot be covered in depth in a book this small. but Tribe spends more than half the book explaining what he wont cover. "IF you think this book is about this.. its not.. that topic would be this.. I am gonna talk about XYZ".. The naming on the models he does eventually cover is stretched a little too thin for my liking. And there are a number of discussions that seem to originate primarily out of self defense.. I dont know this to be true, but I get the impression that one critique that he takes great pain to target is the concept something like "the invisible constitution can be made into anything we wish".. But it was a useful book with a lot of good historical information, the early chpaters spurred mots of additional purchases because many of those things "this book is not about" were things I was intrested to pursue.

I had the privilege to be taught Con Law by Prof Tribe in the 80s. Although my political views were and are somewhat to his right (although to Justice Scalia's left), I still regard him as the most brilliant teacher I encountered at HLS. His ability to synthesize complex ideas and corresponding facility to express them were astonishing. The lengthy sentences one finds in this book are exactly how he spoke in class, with not even an 'um' or 'you know' to give a notetaker a break. His facility with US law and gift of expression were all the more impressive given that he was born to Russian emigres in Shanghai and majored in math (not your typical pre-law curriculum) before law school. I was and am in awe of a mind with so much capability. At the same time, even the most brilliant minds are not perfect. In the late 70s, Prof Tribe wrote a very long article finding, in a Rehnquist Court opinion, National League of Cities v Usery, which took the rare step of using the 10th Amendment to invalidate a federal law imposing new financial obligations on state governments relative to their employees, a reading that supported imposing an affirmative obligation to deliver "essential services" to citizens - an unlikely intention in a Rehnquist era opinion. By the time I had reached his class, Professor Tribe was telling students the article was "the dumbest thing I ever wrote" and repudiating its analysis. While that kind of intellectual honesty is incredibly admirable, it served as an invitation to all to think critically about his work generally and not accept it out of awe. Some years ago, Prof Tribe lamented that there was no longer any coherent basis he could find for a unified approach to interpreting the Constitution. Essentially the decades of the Rehnquist Court were so at odds with what had preceded them in the 20th century, there was no logic he could find to pull the two eras together. This book is three things: first, an effort to refute a "literalist" approach to reading the Constitution; second, a restatement of some of the fundamental themes Prof Tribe has pursued in advocacy and academically, principally in civil liberties and last an effort to reexamine whether there are in fact some coherent ways to interpret the Constitution. On the first topic, Prof Tribe does a good job although he sets the "literalist" argument in sort of a cardboard cutout fashion, as an absolutist and sweeping argument, making the refutation easier than perhaps it might be in a debate. An example of the argument: the Constitution does not specify how it should be interpreted, thus, how can one claim literal interpretation is required by the Constitution? One must be relying on an extra-textual source, refuting one's claim to be literal. Those extra textual principles are the "dark matter' or "Invisible Constitution" that this book seeks to establish or remind the reader of. On the second theme, this is the area where Prof Tribe has made his mark as an advoca

I read this book last week and found it rather difficult to get through. Professor Tribe sometimes had exceedingly lengthy sentences that I found myself constantly re-reading and dissecting. I thought perhaps my intellectual powers were diminishing at the ripe old age of 41! So I am glad to see others had difficulty reading it, too. That aside, the topic was exactly what I was searching for. A conversation with someone involving the separation of church and state set me off on a tangent. I was interested in the discrepancies between what the constitution actually says and what our interpretions of it lead us to believe. In many of the judicial decisions such as the Dredd Scott case and Brown v. Board of Education the Supreme Court goes from one end of the philosophical spectrum to the another, laden with the conservative or liberal idiosyncracies of the justices. The two cases above represent diametrical decisions. I was trying to understand why such latitude and inconsistency exist in an area (law) that greatly affects American life. The Supreme Court has exacted the reputation for being the "final stop" on law and justice yet its decisions (based on constitutional law) have been notoriously inconsistent and unabashedly partisan. Professor Tribe, when I could understand him, addressed most of those issues. And the citation of cases for reference was indispensible. The chapters are broken up into small sections which helps alot with the subject matter. Tje professor is not so much concerned with what the constitution says as he is with the effect it has on American Life: social, economic and political. The book will bear another reading, though.

There is a great deal more in constitutional law than is contained in the spare, sparse language of the U.S. Constitution. Or at lease Laurence Tribe believes so. Mr. Tribe is a constitutional law professor at Harvard Law School. Other than the justices on the supreme court, there is really no better authority on what constitutional law contains. Yet there is disagreement about this. Justice Antonin Scalia is well known for his strict adherence to the written words of the Constitution. Consider, however, the words of article IX of the Bill of Rights: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Professor Tribe argues that the words of this clause are a huge gap through which truckloads of rights, unknown to James Madison or John Marshall, can be driven. How, then can we decide what is a right retained by the people and what is a kooky, left wing idea, best left in the dust bin of history? Tribe offers six methods that jurists have used to think about, and argue for, these invisible constitutional rights. First the geometric construction, connecting the dots between different articles of the constitution. This is how the much argued right to privacy has been derived. Nowhere does the constitution mention the word "privacy." It does say, though "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. " and "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." When you put them together you get a more general concept that the government should leave people alone, especially in their own homes, but also in their possessions and their bodies, in short - privacy. Another method of constructing constitutional rights described by Tribe are the geodesic - building a dome, like Buckminster Fuller, again out of already existing rights, to protect the freedoms of the individual. The global is another, reinforcing ones argument by reference to laws and practices in other countries. Justice Scalia has been guilty of this practice himself, according to professor Tribe. The geological, unearthing evidence of the intent of the founding fathers in historical sources is the fourth method. The gravitational, where he makes an argument based on Einstein's relativity theory and argues that laws create distortions of the social space time continuum is another. (did I mention that some of this is kind of hard to follow?) And finally the gyroscopic, in which the force of previously made decisions in the court help to stabilize the interpretation of the constitution by weight of their precedent, even when th

I've finally found it!!! The book more soporific than my dissertation!!! Let me begin my review by saying that, as more an expansionist than a textualist like his colleague from Yale Law, Tribe presents a most agreeable argument to me. Basically, it is argued that the constitution is more than just a sheet of paper with precise words written on it that should not be interpreted by the US Supreme Court, but, rather modified by the citizens. Tribe argues that, of necessity, the USSC must interpret and expand upon our constitutional understandings. He writes about what he's going to say, how it's going to be said, what is being said, and what was just said, leaving very few comments as brilliant as the author is. That's unfortunate, because if he were half as persuasive as Professor Amar, many Americans might have been persuaded by the logic of his arguments. If he had been just a bit more persuasive, perhaps more people might have understood and agreed with his premises. Certainly, I believe him, that more general citizens are interpretivists whereas more scholars might be more inclined toward textualism. By the way, I loved the dust jacket, semi-opaque over a copy of the constitution. I'd love to hear him speak somewhere sometime. I'd purchase this book again and read it again. I'd give him an A+ for billiance and argument but a B- due to limitations on readibility.