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The Left’s Invisible Constitution

Previewing the Obama courts, courtesy of Laurence Tribe.

By 11.12.08

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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.

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About the Author
Brett Joshpe is an attorney and entrepreneur in New York City. He is Of Counsel to the American Center for Law & Justice and co-authored the book Why You're Wrong About the Right (Simon & Schuster, 2008).