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27 of 33 people found the following review helpful:
3.0 out of 5 stars
Accurate, yet somehow unconvincing, February 25, 2009
This review is from: The Invisible Constitution (Inalienable Rights) (Hardcover)
Ah, the Internet, where a stray dog can bark and yap at a king. Tribe is an eminence grise of constitutional law, but this book doesn't reflect very positively on him: it's lazy, repetitive, and haphazardly organized. One suspects that it was an interesting 90 minute lecture before it was padded out to book length.
The first 25% of the text is dedicated to telling you how great the book is going to be when you finally get to it. I read it so you don't have to: skip this part.
The middle 50% of the book advances the argument that there are principles and rules generally agreed to be of constitutional force even though they appear nowhere in the actual text of the Constitution. For example, it's widely believed that the First Amendment to the Constitution prevents states from unduly restricting citizens' right to free speech. But the Amendment doesn't really say that; the text applies this restriction only to the U.S. Congress. The extension to the states is implicit.
Unfortunately, that's about as far as the argument goes. Evidently, the existence of an "invisible Constitution" is still something of a disputed issue among constitutional scholars, and in this book Tribe is more concerned with establishing a strong case for the existence of SOME "invisible Constitution" than he is with outlining what that constitutional "dark matter" might contain.
It's hard not to sympathize with his reticence. Any substantive claim about the content of the "invisible Constitution" would probably open more cans of worms than could be comfortably digested in one book. So, he's limited to a handful of airtight examples, none of which seem particularly important or enlightening. After all, they are all "settled constitutional law" that "everyone knows"; that's Tribe's point.
But Laurence, you had me at hello. Are there really people (scholars, no less) who conceive the Constitution to be a perfect document with no loose ends, rough edges, gaps, errors, or ambiguities? Surely some lacunae are to be expected. Does anyone seriously argue otherwise?
Tribe himself seems to be pacing, Tiger-like, behind the bars of his own narrow argument. I had the sense that he longed to break out and sink his teeth into some real meat, such as the construction of privacy rights or the constitutional issues surrounding gay marriage. But alas, that's a feast for another day. No meat for Tribe, or for you.
The final 25% of the book bounds off cheerfully into the realm of performance art. It consists of a series of six metaphorical viewpoints on the Constitution accompanied by full-color sketches in what appears to be magic marker. One by one, the "geometric," "geodesic," "global," "geological," "gravitational," and "gyroscopic" Weltanschauungen take to the stage to dance and play like the instruments in Britten's "A Young Person's Guide to the Orchestra." These sections are actually quite interesting, but they clash a bit with Tribe's turgid and professorial prose, and the relationship of the models to the "invisible constitution" isn't entirely clear.
All of these models attempt to intuit "what the Constitution is trying to accomplish," so they're potentially informative regarding unwritten aspects of the document. But their implications go so far beyond the domain of the "invisible Constitution" as Tribe defines it that they don't seem directly relevant to his argument.
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20 of 25 people found the following review helpful:
4.0 out of 5 stars
excellent and informative, November 18, 2008
This review is from: The Invisible Constitution (Inalienable Rights) (Hardcover)
I've finally found it!!! The book more soporific than my dissertation!!! Let me begin my review by saying that, as more an expansionist than a textualist like his colleague from Yale Law, Tribe presents a most agreeable argument to me. Basically, it is argued that the constitution is more than just a sheet of paper with precise words written on it that should not be interpreted by the US Supreme Court, but, rather modified by the citizens. Tribe argues that, of necessity, the USSC must interpret and expand upon our constitutional understandings. He writes about what he's going to say, how it's going to be said, what is being said, and what was just said, leaving very few comments as brilliant as the author is. That's unfortunate, because if he were half as persuasive as Professor Amar, many Americans might have been persuaded by the logic of his arguments. If he had been just a bit more persuasive, perhaps more people might have understood and agreed with his premises. Certainly, I believe him, that more general citizens are interpretivists whereas more scholars might be more inclined toward textualism. By the way, I loved the dust jacket, semi-opaque over a copy of the constitution. I'd love to hear him speak somewhere sometime. I'd purchase this book again and read it again. I'd give him an A+ for billiance and argument but a B- due to limitations on readibility.
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14 of 17 people found the following review helpful:
5.0 out of 5 stars
Dissenting (from the other reviewers) opinion, April 4, 2009
This review is from: The Invisible Constitution (Inalienable Rights) (Hardcover)
I had the privilege to be taught Con Law by Prof Tribe in the 80s. Although my political views were and are somewhat to his right (although to Justice Scalia's left), I still regard him as the most brilliant teacher I encountered at HLS. His ability to synthesize complex ideas and corresponding facility to express them were astonishing. The lengthy sentences one finds in this book are exactly how he spoke in class, with not even an 'um' or 'you know' to give a notetaker a break. His facility with US law and gift of expression were all the more impressive given that he was born to Russian emigres in Shanghai and majored in math (not your typical pre-law curriculum) before law school. I was and am in awe of a mind with so much capability.
At the same time, even the most brilliant minds are not perfect. In the late 70s, Prof Tribe wrote a very long article finding, in a Rehnquist Court opinion, National League of Cities v Usery, which took the rare step of using the 10th Amendment to invalidate a federal law imposing new financial obligations on state governments relative to their employees, a reading that supported imposing an affirmative obligation to deliver "essential services" to citizens - an unlikely intention in a Rehnquist era opinion. By the time I had reached his class, Professor Tribe was telling students the article was "the dumbest thing I ever wrote" and repudiating its analysis. While that kind of intellectual honesty is incredibly admirable, it served as an invitation to all to think critically about his work generally and not accept it out of awe.
Some years ago, Prof Tribe lamented that there was no longer any coherent basis he could find for a unified approach to interpreting the Constitution. Essentially the decades of the Rehnquist Court were so at odds with what had preceded them in the 20th century, there was no logic he could find to pull the two eras together.
This book is three things: first, an effort to refute a "literalist" approach to reading the Constitution; second, a restatement of some of the fundamental themes Prof Tribe has pursued in advocacy and academically, principally in civil liberties and last an effort to reexamine whether there are in fact some coherent ways to interpret the Constitution.
On the first topic, Prof Tribe does a good job although he sets the "literalist" argument in sort of a cardboard cutout fashion, as an absolutist and sweeping argument, making the refutation easier than perhaps it might be in a debate. An example of the argument: the Constitution does not specify how it should be interpreted, thus, how can one claim literal interpretation is required by the Constitution? One must be relying on an extra-textual source, refuting one's claim to be literal. Those extra textual principles are the "dark matter' or "Invisible Constitution" that this book seeks to establish or remind the reader of.
On the second theme, this is the area where Prof Tribe has made his mark as an advocate so this part is well worth studying. To illustrate the argument,at pages 82-91 there is a discussion of a hypothetical law making it a crime to purchase or rent a residence, or host a guest in the residence without the written approval of 2/3 of the residents within 500 feet and challenges the reader to explain why such a law might be unconstitutional. Prof Tribe determines that it is because it delegates the government's decision-making to private citizens without any review by properly selected governmental officials. Plausible I guess but what I found implausible, reminiscent of Prof Tribe's own self criticism in the Usery context, was his assertion that such a law would not impair any "substantive facet of personal liberty particularly singled out by the Bill of Rights...." which seemed to me to overlook the property rights involved and the argument that the law was a taking of such rights without due process or just compensation, an analysis that Prof Tribe did not seem to contemplate, perhaps because that line of attack is one where politically he seems to be on the opposite side.
I'll address the third theme below in relation to the visuals in this book.
I recommend this book highly to readers with some foundation in the subject, not because I agree with all of it but because it challenges the reader to think hard about these important issues and it is the work of a truly brilliant mind.
It seems from the reviews below that some people with out the prior exposure to Prof Tribe that I had struggle with the book. I agree that the introductory chapters are too long and repetitive, although short in an absolute numbers - there just isn't much going on in Parts I and II. The 100 pages after that for me were intellectually very stimulating and this is where the second theme of the book comes out.
Then one encounters 6 visual diagrams that Prof Tribe has drawn in which he illustrates how he conceives of and organizes his main ideas about the Constitution. Without a background in the subject, I suspect the reader will not be able to process these but they are extraordinary glimpses into how a great mind works and it is here that one sees his renewed effort to configure major Constitutional ideas to make them cohere. Studying these as a former student made me think this must be what it is like for a physicist to study Einstein's notes and equations toward a unified theory of physics.
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