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.
