The Invisible Constitution

Reviewed by Timothy Sandefur

By Laurence H. Tribe
Oxford University Press,
$19.95, hardcover

The point of The Invisible Constitution is that there are unwritten norms or mores to which we must refer to understand and apply the written Constitution. This much is obvious to common law lawyers: The Constitution contains no definitions section, so we must look to the context of history and philosophy to interpret words like liberty or speech. More broadly, there are certain cultural experiences and historical lessons that help define us as "the people of the United States." In The Constitution of 1787 (Johns Hopkins University Press, 1989), George Anastaplo pointed out that even the English language and the works of Shakespeare might in this sense be called "constitutions."

The problem is, which experiences and lessons should count most? And if those chosen experiences teach vague or even contradictory lessons, which ones should be given effect by the courts? The purpose of having a written constitution is to create as objective a reference as possible that lists those lessons we want the state to learn, and thereby to limit the discretion of officials who might, as did the kings of old, use vague precedents to justify whatever actions they want to undertake.

Alas, Laurence Tribe, Harvard law professor and author of The Invisible Constitution, does not apply to these questions anything like a consistent approach. Instead, his book is a scattering of short essays, many imbued with Tribe's characteristic gift for clever metaphor but adding up to no coherent theory.

This is not just my opinion. Tribe himself admits to inconsistencies, taking pride in "my attraction to paradox" and quoting Walt Whitman's excuse for self-contradiction: "I am large; I contain multitudes." For example, on page 30, he rejects natural rights as something nobody can take seriously anymore - only to insist three pages later that it is "axiomatic" that "there must be some such boundary" protecting human rights against the will of the majority. Or contrast Tribe's view of Lochner v. New York with his view of sexual-privacy cases such as Griswold v. Connecticut. He praises the latter for invalidating laws "dictating to mature adults" the "form that their personal relationships may assume," yet he attacks Lochner for affirming a comparable individual autonomy in the realm of economic decisions. Lochner, he complains, was undemocratic. But if the Constitution was written to prevent "the government dictating the details of private interpersonal relationships," why should the same principle not apply to an individual's freedom to establish business relationships?

This disparity actually provides the key to Tribe's paradoxes. Despite his protest that "this book ... is not a selective brief in support of rights widely associated with the cultural and political left," he adheres to the jurisprudential double standard, formulated by leftist lawyers and judges during the New Deal era, that protects preferred "noneconomic" rights but allows legislatures nearly free rein to override disfavored "economic" rights.

Unfortunately, this double standard is not just leftist orthodoxy, but, as Tribe might acknowledge, it is also a paradox. Rights cannot be neatly classified as economic or noneconomic. As a result, we are seeing the New Deal double standard unravel bit by bit each year, and with it the 70-year-old consensus that grew up around "footnote four" and its progeny. This may explain Tribe's announcement a few years ago that he would not complete the second volume of his American Constitutional Law (University Textbook Series, 1999), because he could no longer discern a unified constitutional theory. It would have been more accurate to say that the theory the courts have taken for granted can no longer account for the data.

When a paradigm falls apart, its defenders will usually formulate a desperate rationalization to rescue it, as did the 16th-century astronomers who drew increasingly elaborate epicycles to predict the orbits of planets that could be more simply explained by Galileo's theory. It is therefore fitting that Tribe's confusion climaxes with an absurd set of drawings by Tribe himself, supposedly illustrating five different views of the Constitution. In the one labeled "Geometric Construction," a multicolored triangle formed by lines connecting "life," "liberty," and "property" overlaps another that connects "privacy," "political participation," and "life;" and a third formed by "property," "self-government," and "Article II." Crisscrossing the page are arrows in various hues pointing in different directions, and at the center of it all is a black dot labeled, of all things, "right to receive medical treatment." What exactly does this prove? These diagrams do not make the invisible Constitution any clearer; they only obscure the actual Constitution we might otherwise see.

Paradox may be enjoyable in poetry, where, as Nietzsche said, poets muddy their waters to make them appear deep. But paradox doesn't belong in the law, where it's better known as arbitrariness. Our Constitution is a simple document written in plain language, not for an elite but for a self-governing people. Unwritten traditions and complicated theories certainly play a role in understanding it, but they must always be rooted in the writings of "the people." When lawyers yield to the temptation of formulating labyrinthine doctrines by which the rights they treasure are strongly protected and rights they consider unimportant are left out in the rain, they have clearly gone wrong.

In recent years we have seen a series of first-rate books of constitutional theory by Akhil Reed Amar, Randy Barnett, Charles Fried, and others. These books are far superior guides to constitutions, both visible and invisible, than this silly and forgettable book.

Timothy Sandefur is a senior staff attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006).

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