Customer Reviews

The Invisible Constitution (Inalienable Rights)

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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.

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.

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.

I read this book last week and found it rather difficult to get through. Professor Tribe sometimes had exceedingly lengthy sentences that I found myself constantly re-reading and dissecting. I thought perhaps my intellectual powers were diminishing at the ripe old age of 41! So I am glad to see others had difficulty reading it, too.

That aside, the topic was exactly what I was searching for. A conversation with someone involving the separation of church and state set me off on a tangent. I was interested in the discrepancies between what the constitution actually says and what our interpretions of it lead us to believe. In many of the judicial decisions such as the Dredd Scott case and Brown v. Board of Education the Supreme Court goes from one end of the philosophical spectrum to the another, laden with the conservative or liberal idiosyncracies of the justices. The two cases above represent diametrical decisions. I was trying to understand why such latitude and inconsistency exist in an area (law) that greatly affects American life. The Supreme Court has exacted the reputation for being the "final stop" on law and justice yet its decisions (based on constitutional law) have been notoriously inconsistent and unabashedly partisan.


Professor Tribe, when I could understand him, addressed most of those issues. And the citation of cases for reference was indispensible. The chapters are broken up into small sections which helps alot with the subject matter. Tje professor is not so much concerned with what the constitution says as he is with the effect it has on American Life: social, economic and political. The book will bear another reading, though.

I started having trouble as soon as I picked up "The Invisible Constitution," and I quickly began to wonder if it was over my head. (I'm not an unintelligent person, but I'm also not one of Tribe's law students at Harvard.) Still, I pushed on stubbornly in hopes of learning something about constitutional law and because I didn't want to give up just because it wasn't easy. (And besides, I'd purchased the book.)

While I can't fault an author for his subject matter being too advanced for my understanding, it became apparent after a few short chapters that my initial suspicions were incorrect. The book wasn't over my head; it was just poorly written. The writing is overly verbose, repetitive, and lazy (attributes the author seems to have tried to disguise with scholarly references, excessive name dropping, and an academic vocabulary).

Other reviewers have already pointed out that about a quarter of the book serves the purpose of describing what the book is going to be about. This is no exaggeration! Excluding such necessaries as the introduction, index, and sources, "The Invisible Constitution" is 211 pages long, and every chapter for the first 50 pages ends with a "we will learn" teaser of a concluding paragraph -- with the same "conclusion" being made over and over.

Now, in case you're scratching your head over the phrase "every chapter for the first 50 pages," you should know that the chapters are tiny, with just 211 pages making up 42 separate chapters. (The chapters weren't numbered for some reason. Out of curiosity, I counted from the table of contents.) That averages out to about 5 pages per chapter, and most of these microchapters don't even divide the text in any clear or logical manner. I'm left to assume it's a writer's or publisher's trick to create padding (as an excuse for the text to repeat itself, perhaps).

And while the chapters may be oddly short, the individual sentences themselves routinely take up roughly a third of a page. Throughout the book, Tribe casually names historical court cases and Supreme Court Justices (past and present) as if the reader should instantly recognize them and their significance. Once again, I can't find fault in an author for writing above my level, but the already-challenging task of working through this book's advanced subject matter is rendered unnecessarily difficult by its exceedingly long, convoluted sentences.

Nearing the end of the book, Tribe tries to make his points clear by offering us several colorful diagrams that look as if they were scrawled on a dry-erase marker board. In my educational experiences, diagrams have typically been used to clarify a complicated topic by giving the reader a simple visual (as with the food chain, evolution, the branches of government, etc.), but Tribe's sketches are needlessly tangled almost to the point of being bizarre. The accompanying texts reveal that the points he was making were not nearly as complex as the images might make them seem. For example, one concept could be summed up with, "when laws are based on loose interpretations of constitutional amendments, this creates a 'slippery slope' by setting precedence that allows for more laws to be created based on equally loose interpretations." The image for this relatively simple concept looks like something an astronomer might draw to describe the effects of a black hole on gravity.

Ultimately, I think what disappointed me the most about this book is that it just beats a dead horse, so to speak. The point of "The Invisible Constitution" is that concepts and laws can be "constitutional" or "unconstitutional" even if they aren't directly mentioned in the text of the Constitution. Is that a surprise to anyone? Does anyone really disagree? Aside from occasionally hearing the ad hoc argument, "show me where it says in the Constitution that the government can [do something I don't like]," are there really people who take a completely text-based approach to viewing the constitutionality of laws? I would be surprised to learn that the existence of an "invisible" (that is, subtextual) Constitution was denied by any more than an extreme minority of Tribe's students and colleagues -- or even moderately intellectual Americans.

My nonfiction reading usually has more of a science focus, and I'm often pretty impressed with the ways some brilliant scientists can connect with a layperson such as myself. If world class evolutionary biologists and astrophysicists can write good books that both educate and entertain their audiences, there's no reason an Ivy League law professor can't do the same.

On the plus side, the "visible" Constitution can be found in the back of the book, along with The Declaration of Independence.

There is a great deal more in constitutional law than is contained in the spare, sparse language of the U.S. Constitution. Or at lease Laurence Tribe believes so. Mr. Tribe is a constitutional law professor at Harvard Law School. Other than the justices on the supreme court, there is really no better authority on what constitutional law contains. Yet there is disagreement about this. Justice Antonin Scalia is well known for his strict adherence to the written words of the Constitution.

Consider, however, the words of article IX of the Bill of Rights:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Professor Tribe argues that the words of this clause are a huge gap through which truckloads of rights, unknown to James Madison or John Marshall, can be driven. How, then can we decide what is a right retained by the people and what is a kooky, left wing idea, best left in the dust bin of history?

Tribe offers six methods that jurists have used to think about, and argue for, these invisible constitutional rights. First the geometric construction, connecting the dots between different articles of the constitution. This is how the much argued right to privacy has been derived. Nowhere does the constitution mention the word "privacy." It does say, though "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. " and "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." When you put them together you get a more general concept that the government should leave people alone, especially in their own homes, but also in their possessions and their bodies, in short - privacy.

Another method of constructing constitutional rights described by Tribe are the geodesic - building a dome, like Buckminster Fuller, again out of already existing rights, to protect the freedoms of the individual. The global is another, reinforcing ones argument by reference to laws and practices in other countries. Justice Scalia has been guilty of this practice himself, according to professor Tribe. The geological, unearthing evidence of the intent of the founding fathers in historical sources is the fourth method. The gravitational, where he makes an argument based on Einstein's relativity theory and argues that laws create distortions of the social space time continuum is another. (did I mention that some of this is kind of hard to follow?) And finally the gyroscopic, in which the force of previously made decisions in the court help to stabilize the interpretation of the constitution by weight of their precedent, even when they are wrong.

Professor Tribe is obviously a really smart person and he has had the help of some other really smart people over the years, including a young research assistant who has gone on to bigger things, a fellow named Barry Obama. I tended to go all glassy eyed reading some of Tribe's explanations. Me and Sarah Palin are probably not destined to sit on the Supreme Court, I would guess. He has almost made me a strict constructionist, but then he did convince me that strict constructionists are most strict when construction arguments against things that the personally don't care for and are a lot looser when they argue for something that suits them.

Having recently completed my reading of "The Invisible Constitution," I would like to share my thoughts regarding the books underlying theme. My initial half serious perception of the "legalese" of long and complex sentences aside, I did enjoy this book. While "legalese" causes difficulties for laymen such as myself, I am wise enough to have some insight into its purpose. Law is a subtle and complex subject, as we know it in the western hemisphere, with a history of many hundreds of years. Consequently, it seems to me that "legalese" may be necessary for the communication of those more subtle ideas of law in a way that is structured well enough for legally trained minds to accurately comprehend them.

At the heart of the author's message are the Ninth and Tenth Amendments of the United States Constitution as well as the "Bill of Rights." All three strongly imply that the Constitution was designed to make a "limited government" both desirable and necessary. I'll spare you the respective texts, if you decide to read the book you'll see what I mean. The Invisible Constitution would appear then to be real and the result of the Constitution's interpreters constantly attempting to achieve the necessary balance between absolute governmental authority and effective self-government. A goal that will never be reached of course, because society is constantly changing.

The book concludes, in part, with the following text:

"It is not the visible or invisible character of our constitutional commitments but there irreducible ambiguity and multidimensionality that ensures our continuing struggle over there meaning. In the end, it is the struggle itself --- not any of the interim destinations to which it might lead --- that the constitutional quest is all about."

I wish I could say it as well but I'm sure Hamilton, Madison and my good "friend" John Adams would be duly impressed!


Charles N. Kuttruff

The topic of constitutional law is obviously broad and cannot be covered in depth in a book this small. but Tribe spends more than half the book explaining what he wont cover. "IF you think this book is about this.. its not.. that topic would be this.. I am gonna talk about XYZ".. The naming on the models he does eventually cover is stretched a little too thin for my liking. And there are a number of discussions that seem to originate primarily out of self defense.. I dont know this to be true, but I get the impression that one critique that he takes great pain to target is the concept something like "the invisible constitution can be made into anything we wish"..

But it was a useful book with a lot of good historical information, the early chpaters spurred mots of additional purchases because many of those things "this book is not about" were things I was intrested to pursue.

This was a very tough read - - - in fact, it so much so I didn't finish it. Perhaps it struck a cord with the attorney-community but I found it verbose and opaque.

I was very interested in the topic and love to read, but I could not drag myself beyond the first few chapters.
Our book group from various professions found "Invisible Constitution" "dense" and difficult reading. Most of the group finished less than half the book. A few brave souls finished and found it enlightening. They had to re-read many sentences to grasp their meaning.
Reading "Invisible Constitution" was like reading the long sentences of Julius Caesar in 3rd year Latin.
Had I graduated in law, I might have followed the thoughts more easily - or perhaps not.
I greatly respect Professor Tribe, but I will be reluctant to begin another of his books.