The Invisible Constitution (Inalienable Rights) (Hardcover)

by Laurence H. Tribe (Author)

Editorial Reviews

Review

"A number of sharp and provocative ideas... While many law-review articles have covered the same territory, Tribe lends a unique breadth of knowledge... this stands as one of the most learned and widest-ranging studies of the limitations involved in rendering legal judgment solely on the basis of the Constitution's text."--Book Forum
"His original views here are carefully distinguished from the ideas of an 'unwritten Constitution.' His provocative analysis and arguments will challenge readers' understanding of constitutional provisions. Strongly recommended for all academic libraries."--Library Journal
"Only a grand master like Laurence Tribe could write this masterpiece. Constitutional interpretation, the understanding of the role of a constitution in a nation's life, and the relationship between constitutional text and context will never be the same as they were before this powerful, inspiring, and original book was written."--Aharon Barak, Chief Justice of Israel (1995-2006)
"From our country's most renowned scholar of constitutional law comes a book so breathtaking in its originality and wide-ranging in its scope that it will become an instant classic. To read The Invisible Constitution is to enter the mind of a brilliant thinker as he reflects upon many of the most important issues of the day."--Doris Kearns Goodwin, author of Team of Rivals: The Political Genius of Abraham Lincoln
"This book is a kick in the shin to 'textualism' and 'originalism,' in that Tribe begins from the principle that the written, or 'visible,' Constitution so revered by conservative jurists is, in fact, only a small part of what Americans think of as the Constitution. he offers a blueprint for reimagining the national constitutional conversation with fuller information about its complexities and internal tensions. He asks us to take the time to figure out what the founding document does rather than nitpicking about what it says. And if ever there were a moment in which liberal thinkers might allow themselves to dream big, this should be it."--Slate
"Laurence Tribe offers us a wonderfully far-reaching and mind-bending seminar on what lies beneath, beyond, before, betwixt and between the ink marks of the parchment Constitution and its amendatory postscripts."--Akhil Amar, author of America's Constitution: A Biography
"One of America's leading constitutional experts has delivered a thought-provoking volume that illuminates the complexities of the country's most important document."--U.S. Senator Dianne Feinstein
"Laurence Tribe yet again delivers the goods: this is a thought-provoking examination of some of the most critical constitutional questions of our times. Eminently readable, The Invisible Constitution will give rise to many an important debate--and, perhaps, help put an end to one or two as well."--Nina Totenberg, National Public Radio
"This lucid, deeply engaging book is truly mind-expanding, looking beyond the text of the document for a completely new framework for understanding the Constitution and its interpretation."--Scott Turow, author of Presumed Innocent and Ultimate Punishment


Product Description
As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.
In The Invisible Constitution, Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.
Remarkably original, keenly perceptive, and written with Tribe's trademark analytical flair, this latest volume in Oxford's Inalienable Rights series offers a new way of understanding many of the central constitutional debates of our time.

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Product Details

• Hardcover: 304 pages
• Publisher: Oxford University Press, USA (September 17, 2008)
• Language: English
• ISBN-10: 019530425X
• ISBN-13: 978-0195304251
• Product Dimensions: 8.4 x 5.6 x 1.1 inches
• Shipping Weight: 1 pounds (View shipping rates and policies)
• Average Customer Review: 3.3 out of 5 stars See all reviews (9 customer reviews)
• Amazon.com Sales Rank: #51,138 in Books (See Bestsellers in Books)

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• This item is part of The Inalienable Rights Series.

Customer Reviews

Most Helpful Customer Reviews

10 of 12 people found the following review helpful:

3.0 out of 5 stars Accurate, yet somehow unconvincing, February 25, 2009

By	Garth Snyder (Seattle, WA USA) - See all my reviews (REAL NAME)

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.

15 of 19 people found the following review helpful:

4.0 out of 5 stars excellent and informative, November 18, 2008

By	Robert W. Smith "Robert Smith, Ph.D." (Virginia, USA) - See all my reviews (TOP 1000 REVIEWER)    (REAL NAME)

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.

4 of 4 people found the following review helpful:

5.0 out of 5 stars Dissenting (from the other reviewers) opinion, April 4, 2009

By	MT57 (USA) - See all my reviews

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.