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The Left’s Invisible Constitution
Previewing the Obama courts, courtesy of Laurence Tribe.
The Invisible Constitution
By Laurence Tribe
(Oxford University Press, 304 pages, $19.95)
In order to deepen my understanding of the judicial mindset that might dominate throughout the Barack Obama administration, I read The Invisible Constitution, a new book written by esteemed Harvard Law professor, constitutional attorney and Obama legal advisor, Laurence Tribe. Like many who favor a progressive Constitution, Tribe believes that an intelligent constitutional debate should center, not on whether there exists an “Invisible Constitution,” but on what it contains. And although he strives for non-partisanship in advancing his arguments, he subscribes to — in fact, helps to author — a judicial philosophy that represents a sharp departure from the strict constructionist mantra that conservatives preach.
Tribe believes that the Constitution contains vast amounts of “dark matter,” a term he uses to refer to parts of the Constitution that are “there” but invisible to the reader’s eyes. For example, he says that although the prohibition on states seceding from the Union is nowhere written in the Constitution, it is an “axiom written in blood rather than ink.” He infers certain constitutional rules from the implications of the text itself and deduces others on the grounds that the text would collapse and mean nothing in their absence.
To illustrate his thesis, Tribe poses some thought-provoking hypothetical scenarios, such as whether a city ordinance criminalizing renting or purchasing a residence without obtaining approval of at least two-thirds of residents within 500 feet would pass constitutional muster. He argues that it would not, because the arbitrariness and lack of legislative accountability built into the law would contradict the axiom that we are a “government of laws, not of men,” one of many principles that he asserts has been “constitutionalized,” despite no explicit textual reference. Others, including Supreme Court Justice Antonin Scalia, might argue that the absurdity of Tribe’s hypothetical law does not make it unconstitutional. Rather, republican democracy provides a method for rectifying perverse or senseless laws: legislative elections.
Tribe identifies other principles that are not explicitly contained in the Constitution but that he feels have obtained constitutional status. These include freedom from torture (although what constitutes torture remains opaque), and limits on what matters government may control in a person’s private life. Of course, the latter principle leads to what constitutes, for many in the modern liberal movement, the constitutional Holy Grail: namely, a woman’s right to an abortion. While Tribe might prefer to place greater reliance on the Ninth Amendment, which says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” in bolstering his method of constitutional interpretation, which supports recognition of rights not explicitly mentioned, he also acknowledges the scant reliance on the Amendment in constitutional jurisprudence.
Ultimately, Tribe’s vision of an “Invisible Constitution” containing abortion rights, along with a myriad of other constitutional rights, raises more questions than it answers. While he is correct that much constitutional interpretation requires deviation outside of the text itself (for instance, what does First Amendment “speech” entail?), a consistent reliance on the “Invisible Constitution” provides little logical barrier to virtually any desired constitutional result.
For instance, if a constitutional limit on government control over an individual’s life dictates abortion rights, why not a constitutional right to ingest drugs or a constitutional right to multiple marriage partners? Tribe, like many liberal constitutional scholars, provides little insight into determining the boundaries of constitutional rights.
While the notion of constitutional rights often sounds appealing, the expansion of the Constitution often means the contraction of democracy, given that constitutional decisions can remove important policy debates from the realm of democratic decision-making. Furthermore, creating or expanding constitutional rights does not occur in a vacuum. In Hohfeldian terms, based on the analysis of American jurist, Wesley Hohfeld, every right requires a correlative duty, and every privilege entails a correlative lack of rights.
In terms of how the “Invisible Constitution” might impact the new presidential administration, Barack Obama recently said “I want judges who have a heart, have an empathy for the teenage mom, the minority, the gay, the disabled. We want them to show empathy. We want them to show compassion.” However, a true nation of laws requires that judges do their best to interpret laws as they are written, or, at the very least, to remain as restrained as possible in deviating from the text, not to inject their own personal view of what is just or compassionate.
Such a presumptuous approach demeans not only the Constitution but democratic lawmaking. Tribe ends his book by appropriately quoting from the Allegory of the Cave in Plato’s The Republic. “Everything that we see is a shadow cast by that which we do not see.” The question then becomes who ought to determine what it is that we do not see. Conservatives tend to say democratically elected officials whose judgment is subject to accountability. Liberals, on the other hand, tend to put their faith in the Philosopher Kings.
Letter to the Editor View all comments (14) | Leave a comment
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Melvin| 11.12.08 @ 8:27AM
Any person can over-analyse the US Constitution to the point that the Constitution's original intent is forgotten.
This is similar to the Senate race in Minnesota, keep counting and analysing the ballots and Franken will eventually get to results he seeks.
Vern Crisler | 11.12.08 @ 9:28AM
Of course, Tribe's example of a law regarding rent is ridiculous since the Constitution was not written to deal with domestic matters within the States.
mnotaro| 11.12.08 @ 12:12PM
Obama wanting judges to show empathy and feeling when discerning a judgment? I thought the job of a judge was supposed to be unemotional and sticking to the facts and the law when making a ruling, not using your feelings to make decisions. Oh great! What a sign of things to come from the liberal illumianti.
Anthony| 11.12.08 @ 3:39PM
Your last paragraph says it all. Leftist intellectuals, like Tribe, have never understood the minimalist nature of our Constitution. The Constitution is the framework in which our government is to operate within, with the 3 branches of government performing their functions, as per the ordinary meaning of their Constitutional authority. Tribe's "Invisible Constitution" is just another rehash of the "Penumbras" the Warren Court "saw" to create rights by judicial fiat, not expressed in the Constitution. Your analogy is incorrect when you compare the defination of "speech" to the creation of a right, say abortion. Thomas Jefferson spoke of ordinary word meaning in the context of the Declaration of Independence, not obscure metaphysical mysticism that only the "select" with special glasses can see. Obama wants justices, like Tribe, to use their special glasses, to create rights which cannot be created from the written word, but can only be created from the either. Hand it to the Left, an invisible Constitution is a hell of a way to run a country into ruin and destruction. Just what the anarchist ordered!!
Alan Brooks| 11.13.08 @ 1:48AM
deriving from a VERY lib (more like radic-lib) family, I have become socially conservative after witnessing 40 years of liberal dissoluteness both personally and from observing the national scene.
We need more justices like Anton Scalia, as what is not unambiguously conservative drifts towards permissiveness to say the least.
I now see "reactionary" is just a nasty epithet for conservative.
I don't care if Obama is a pinko, am tired of economics, as long as some shred of morality is preserved, as long as we don't end up like in the mid-late '70s (more the era of moral decay than the '60s) we might pull through.
wade| 11.13.08 @ 8:31AM
As usual, we look at the trees and not the forest. The point of a "living" Constitution (making it "invisible") is to get the U.S. Constitution out of the way of the liberal agenda. Liberals have always known that the document stands in their way so it must somehow be discredited. The Warren Court of the 1970's was successful in doing that by using the hiden "prenumbras". Tribe is simply a student of that thought. But it is not for the purpose of actually explaining the constitution; the purpose is to get it out of the way of modern liberalism. Obama is the last piece of the puzzle that will allow modern liberalism to do what it wants to do......they need five justices who will say, like Warren, "the Constitution is what the judges say it is!"
Terry| 11.14.08 @ 9:03AM
It seems there are two (2) essential concepts that Mr. Tribe posits:
1. The Constitution limits Government, not the people. By taking the 'Invisible' nature of that document, essentially asserting a societal context based upon ever changing cultural mores. Thus, for example, the Government could dictate what could be preached in churches (a striking reversal of Church-State matters).
2 An 'Invisible' Constitution, by its very nature, cannot be codified. Thus legal precedent is cast into an unknown area without the benefit of an anchor or consistent navigation.
Ms. Know| 11.15.08 @ 8:19PM
The left-wing illuminati are going to change the constitution so much, watch. First the right to bear arms, and who knows what's next.
Kateblu| 1.14.09 @ 10:39PM
I am in the middle of reading 'the invisible constitution' but can note the following: The foundation of Tribe's argument is that you cannot interpret the constitution by staying within the four corners of the document. This was proved by Kurt Godels in 1929: no axiomatic system can be complete and understood without reference to outside assumptions (with apologies to mathematicians everywhere) . The constitution is an axiomatic system that depends upon the definitions applied to its terms. For me the question is whether one should be bound to definitions from a specific historical period or whether definitions should be allowed to evolve. The problem with the former is that we have problems that were not imagined in the 1780's. It is ludicrous to try to determine what Thomas Jefferson would have thought about wiretapping because he would never have thought about it. The problem with the latter is that reasonable minds can differ about, e.g., the proper definition of protected speech for purposes of application of the First Amendment. Tribe tries to ascertain what 'most people' would believe is a protected right. I'm not sure that should be the basis of definition. Surely if 'most people' believe something it will or could be reflected in current statutory law - or perhaps judges should have the power to determine what most people 'really' believe as opposed to the statutes that have been enacted by their representatives. I think judges are on higher ground when they avoid both extremes and focus upon stare decisis.
Umberto Baldocchi| 3.28.09 @ 6:35AM
That's not a real comment. I have still to read THE INVISIBLE CONSTITUTIN. I'll try to get the book.This is an information: I myself published a book with the same title ( but probably in a slightly different sense, but with something probabky in common) about Italy, The book is : Umberto Baldocchi, Marinella Lizza, La Costituzione invisibile- Dai manuali di storia all'immaginario civico degli Italiani, Pisa, ETS, 2008- ISBN 978-884672183-9
Best regards
Umberto Baldocchi
tonypal| 5.5.09 @ 6:03PM
Vern:
The post Civil War amendments, specifically numbers 13-15, are directly applicable to the states. Take the equal protection clause of the 14th amendment and then expand on Tribe's example. Suppose it was shown that the purpose of the ordinance was to deny a certain classification of individual the right to rent or purchase a home. Although there is no "facial" discrimination, the ordinance would nonetheless be unconstitutional because it's practical effect would be discriminatory.
Having said all of that, I find Tribe's views to be extraordinarily dangerous. Applying Tribe's "dark matter" formulation, the Constitution is essentially worthless because Justices would be freed to make decisions based upon notions of political expediency. Come to think of it, that's pretty much what they're doing now.