As announced earlier this semester, several faculty members have been reading Laurence Tribe’s The Invisible Constitution. I hope that we will be having a series of posts and comments on the book. I have just finished reading it. A few very general reactions will be offered here.
Tribe’s interest is in a set of principles that have come to be accepted as constitutional in nature, but that appear nowhere in the Constitution’s written text. He lists as examples:
- Courts must not automatically defer to what elected officials decide the Constitution means.
- Government may not torture people to force information out of them.
- In each person’s intimate private life, there are limits to what government may control.
- Congress may not commandeer the states as though they were agencies or departments of the federal government.
- No state may secede from the Union. (28)
In developing his thesis that the Constitution contains such invisible “dark matter,” Tribe implicitly situates himself in opposition to the formalist school of constitutional interpretation, which emphasizes the written text of the Constitution and historical documents from the framing era that shed light on the meaning of the text. Tribe instead understands the content of the Constitution to evolve over time, even without formal amendment of the text.
[T]he Constitution comes packed with a thick, non-self-defining history, which follows it through time and which succeeding generations must of necessity unpack, doing so in light of what they have in the intervening years and decades come to understand about the concepts that the Constitution’s history and structure, as well as its text, show it to have embodied. (69)
His approach ultimately strikes me as “purposive” (a term he uses, e.g., on 67): the Constitution should be interpreted in a way that remains true to the purposes, broadly understood, of those who adopted the text, in light of evolving historical understanding of what those purposes were and how they are best realized in present-day circumstances.
A key formalist objection to this approach is its indeterminacy and the accompanying fear that judges will find in the “invisible Constitution” all manner of new rights that merely reflect the judges’ subjective policy preferences. Tribe wants to avoid the whole judicial activism debate and thus indicates that he is writing for all officeholders who must determine what the Constitution says (31-32), but, given the preeminent role of the courts in matters of constitutional interpretation, his book will be evaluated by most readers from the standpoint of what his theory implies for the role of judges. In any event, Tribe is plainly sensitive to the indeteterminacy critique, and the overarching purpose of his book seems to be the demonstration of coherent, recurring patterns in the development of the invisible Constitution. These patterns establish norms that, in Tribe’s view, effective constrain what judges (or other officeholders or even law professors) can find in the invisible Constitution: “[T]he contents of the invisible Constitution are not radically indeterminate — we cannot find in the invisible Constitution anything and everything we might wish” (34).
I am reasonably comfortable with Tribe’s approach, but then I also believe that federal judges generally go about their business with prudence and in good faith, and that the judiciary has a robust set of formal and informal checks and balances that help to ensure the law does not become purely a matter of whim or political agenda. The many people with a more skeptical view of these matters will, I suspect, not be persuaded that Tribe has responded effectively to the indeterminacy problem.
In a later post, I will write more about what Tribe identifies as the “architecture” of the invisible Constitution (54).