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The Invisible Constitution (Inalienable Rights)
by Laurence H. Tribe (Author)
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Product Details
- Binding: Hardcover
- ISBN-10: 019530425X
- ISBN-13: 9780195304251
- Number Of Pages: 304
- Publication Date: September 17, 2008
- Publisher: Oxford University Press, USA
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Product Description
As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.
In The Invisible Constitution, Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.
Remarkably original, keenly perceptive, and written with Tribe's trademark analytical flair, this latest volume in Oxford's Inalienable Rights series offers a new way of understanding many of the central constitutional debates of our time.
Customer Reviews
Rating: 
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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 advocate so this part is well worth studying. To illustrate the argument,at pages 82-91 there is a discussion of a hypothetical law making it a crime to purchase or rent a residence, or host a guest in the residence without the written approval of 2/3 of the residents within 500 feet and challenges the reader to explain why such a law might be unconstitutional. Prof Tribe determines that it is because it delegates the government's decision-making to private citizens without any review by properly selected governmental officials. Plausible I guess but what I found implausible, reminiscent of Prof Tribe's own self criticism in the Usery context, was his assertion that such a law would not impair any "substantive facet of personal liberty particularly singled ... Read More
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Ah, the Internet, where a stray dog can bark and yap at a king. Tribe is an eminence grise of constitutional law, but this book doesn't reflect very positively on him: it's lazy, repetitive, and haphazardly organized. One suspects that it was an interesting 90 minute lecture before it was padded out to book length.
The first 25% of the text is dedicated to telling you how great the book is going to be when you finally get to it. I read it so you don't have to: skip this part.
The middle 50% of the book advances the argument that there are principles and rules generally agreed to be of constitutional force even though they appear nowhere in the actual text of the Constitution. For example, it's widely believed that the First Amendment to the Constitution prevents states from unduly restricting citizens' right to free speech. But the Amendment doesn't really say that; the text applies this restriction only to the U.S. Congress. The extension to the states is implicit.
Unfortunately, that's about as far as the argument goes. Evidently, the existence of an "invisible Constitution" is still something of a disputed issue among constitutional scholars, and in this book Tribe is more concerned with establishing a strong case for the existence of SOME "invisible Constitution" than he is with outlining what that constitutional "dark matter" might contain.
It's hard not to sympathize with his reticence. Any substantive claim about the content of the "invisible Constitution" would probably open more cans of worms than could be comfortably digested in one book. So, he's limited to a handful of airtight examples, none of which seem particularly important or enlightening. After all, they are all "settled constitutional law" that "everyone knows"; that's Tribe's point.
But Laurence, you had me at hello. Are there really people (scholars, no less) who conceive the Constitution to be a perfect document with no loose ends, rough edges, gaps, errors, or ambiguities? Surely some lacunae are to be expected. Does anyone seriously argue otherwise?
Tribe himself seems to be pacing, Tiger-like, behind the bars of his own narrow argument. I had the sense that he longed to break out and sink his teeth into some real meat, such as the construction of privacy rights or the constitutional issues surrounding gay marriage. But alas, that's a feast for another day. No meat for Tribe, or for you.
The final 25% of the book bounds off cheerfully into the realm of performance art. It consists of a series of six metaphorical viewpoints on the Constitution accompanied by full-color sketches in what appears to be magic marker. One by one, the "geometric," "geodesic," "global," "geological," "gravitational," and "gyroscopic" Weltanschauungen take to the stage to dance and play like the instruments in Britten's "A Young Person's Guide to the Orchestra." These sections are actually quite interesting, but they clash a bit with Tribe's turgid and professorial prose, and the relationship of the models to the "invisible constitution" isn't entirely clear.
All of these models attempt to intuit "what the Constitution is trying to accomplish," so they're potentially informative regarding unwritten aspects of the document. But their implications go so far beyond the domain of the "invisible Constitution" as Tribe defines it that they don't seem directly relevant to his argument.
Rating: 
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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.
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This was a very tough read - - - in fact, it so much so I didn't finish it. Perhaps it struck a cord with the attorney-community but I found it verbose and opaque.
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I was very interested in the topic and love to read, but I could not drag myself beyond the first few chapters.
Our book group from various professions found "Invisible Constitution" "dense" and difficult reading. Most of the group finished less than half the book. A few brave souls finished and found it enlightening. They had to re-read many sentences to grasp their meaning.
Reading "Invisible Constitution" was like reading the long sentences of Julius Caesar in 3rd year Latin.
Had I graduated in law, I might have followed the thoughts more easily - or perhaps not.
I greatly respect Professor Tribe, but I will be reluctant to begin another of his books.
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