THE INVISIBLE CONSTITUTION

Vol. 19 No. 1 (January, 2009) pp.60-63

THE INVISIBLE CONSTITUTION, by Laurence H. Tribe. New York: Oxford University Press, 2008. 304pp. Hardback. $19.95. ISBN: 9780195304251.

Reviewed by Kang Chen, Department of Government, Houston Community College. Email: kchen28 [at] yahoo.com.

The publication of a new book on the Constitution by Harvard’s Laurence Tribe, one of the country’s pre-eminent constitutional law scholars, is an event of intrinsic importance. However, the release of THE INVISIBLE CONSTITUTION is significant for more than the usual reasons. First, Professor Tribe’s fame rests largely upon his landmark treatise, AMERICAN CONSTITUTIONAL LAW. In 2005, Professor Tribe announced that he was not writing the eagerly awaited second volume to the third edition of his treatise, because radical disagreement over constitutional basics had made it impossible to fulfill what he considered the function of a legal treatise: to bring competing legal doctrines across the spectrum of an entire field of law under a single, comprehensive, organizational principle or scheme. THE INVISIBLE CONSTITUTION may be read as an exposition of what can be done in the field of constitutional law now that treatise-writing is impossible.

Second, as many readers of this REVIEW will know, Tribe is legal advisor to President-elect Obama (who merits a mention in Tribe’s book at page 201) and is helping him draft a plan to deal with the Guantanamo detainees. Therefore, a book that provides a glimpse into Tribe’s most recent thinking on the Constitution holds not only scholarly but also contemporary political relevance.

In THE INVISIBLE CONSTITUTION, Tribe argues that, when it comes to hard questions involving constitutional fundamentals, the visible text of the Constitution provides no answers. On the contrary, our beliefs regarding constitutional fundamentals determine how we interpret the text of the Constitution, and, indeed, even what counts as the text of the Constitution, since the Constitution does not automatically self-incorporate amendments. If, for example, the United States Congress proposes an amendment, and 37 states ratify the proposed amendment (one less than the 38 required to meet Article V’s three-fourths requirement), and ratification then stalls, can the United States Congress proceed to pass a law or resolution promising federal monies (say, for highway repair) to the 38th state to ratify the proposed amendment? If not, why not? After all, nothing in the text of the Constitution can be reasonably read to forbid such a practice. I believe a number of Americans, including many Americans who believe that we should hew to the letter of the Constitution, would nonetheless find such a practice objectionable and unconstitutional. If a state thereafter ratified the proposed amendment, should we consider that amendment to be part of the Constitution? My point here is not to give an answer to that question; my point is that the question cannot be answered without reliance upon [*61] postulates about legitimate and illegitimate practices within the ratification process, postulates that are not specified in the visible text of Article V, or anywhere else in the Constitution. Hypotheticals of this sort could be endlessly multiplied. Considerations such as these lead Tribe to say that “the invisible Constitution is at the center of the Constitution’s meaning and of its inestimable value” (p.22).

Given such a statement, it is critical that the reader understand what Tribe means by the invisible Constitution. He begins by noting that “the visible Constitution floats in a vast and deep – and, crucially, invisible – ocean of ideas, propositions, recovered memories, and imagined experiences” (p.9). A number of readers – not altogether unreasonably – have read the foregoing as a statement of what the book is about. I believe they are mistaken. On the very next page, Tribe says that his interest “is less in what’s invisible ‘around’ the Constitution than in what is invisible within it” (p.10, emphasis in original). His purpose is to make the reader see “the important respects in which the Constitution’s commands, principles, and modes of operation and evolution go well beyond the words it contains” (p.25). There are some constitutional principles and requirements, such as the antisecession principle, the anticommandeering principle, and the principle of judicial review, that lie at the very heart of the Constitution, despite their lack of explicit textual warrant. There are many such principles, Tribe says. And once we recognize that fact, we will stop arguing about whether there is an invisible Constitution and start arguing about what the invisible Constitution contains.

The foregoing reconstruction of Tribe’s argument is a “thin” account. That is, I have presented the bare-bones or the fundaments of Tribe’s argument by extracting its most commonsensical and least controversial contentions. A “thicker” account of Tribe’s argument could discuss his attempt to establish “autonomy” as a, if not the, fundamental value of the invisible Constitution, and his use of “autonomy” to justify a decidedly liberal orientation to privacy issues. Such a discussion would evaluate arguments regarding what values and principles American political institutions do and should embody. In other words, such a discussion would be a realization of Tribe’s goal of moving the nation’s constitutional conversation “away from debates over what the Constitution says . . . and toward debates over what the Constitution does” (p.22, emphases in original). I shall forsake such a discussion in order to tease out the notion of constitutionalism underlying his conception of “invisibility.”

I begin by noting that Tribe’s argument about the limitations of the Constitution in answering questions involving constitutional fundamentals may seem counterintuitive or even blasphemous. He rightly observes, “the common view is that anything not burned into the Constitution’s unique text must have a more shadowy and dubious, and accordingly less legitimate, status in the law of the Constitution than that enjoyed by its words” (p.21). Tribe contests the “common view” by arguing that certain principles “are so logically central to our governmental system’s coherence that their binding status . . . is unimpaired by the fact that they are not stated in, or even plausibly inferable from, any part [*62] of the Constitution’s text” (p.34). “Especially dramatic in this respect is the proposition that no state may secede from the Union. That proposition, more than any other, is written not in ink but in blood” (p.29). Apparently, the Union is like the mob: once you join, you can never get out, and, like the mob, the Union will use violence to punish, intimidate, and coerce would-be defectors.

Be that as it may. Tribe is confident that the Constitution contains within itself, invisibly of course, the antisecession principle. But precisely if one carefully considers the problem of state secession, one comes to see that Tribe is not sufficiently attentive to the distinctions between problems that occur on the constitutional level and problems that occur at even deeper levels. In this sense, Tribe exhibits the constitutional lawyer’s typical bias of assuming that the constitutional level simply is the deepest level of political commitment. He fails to perceive that, while the “law of the Constitution” is fundamental law, there are principles more fundamental than fundamental law. That which is illegal is not simply illegitimate.

No one knew this better than Abraham Lincoln. Lincoln’s First Inaugural Address makes plain his belief that “no State, upon its own mere motion, can lawfully get out of the Union;” any such motion is unconstitutional. But in that very same address, he distinguished between the people’s “constitutional right” of amendment and their “revolutionary right to dismember or overthrow” their government; i.e., he distinguished between action which is legitimate by virtue of its legality and action which is legitimate despite its illegality. To be sure, a distinction exists between secession (by a part of the people) and revolution (by the whole people), in theory if not in practice. But Lincoln knew that such a theoretical distinction was too weak a reed upon which to build a case for taking up arms against the Southern states. Lincoln took up arms against the Southern states not merely because they formed an “illegal organization in the character of confederate States,” but because they had become aggressors and attacked a federal fort, thereby instigating a “giant insurrection” (July 4, 1961 Message to Congress in Special Session). Not merely the perceived unconstitutionality of the secession, but the violent and insurrectionary character of the secession, justified Lincoln’s resort to force. Had the South managed peaceably to persuade the defenders of the federal forts in the South to vacate the forts, Lincoln would have faced a more difficult challenge in justifying war with the Southern states.

In short, Lincoln, that American Cromwell, recognized the limits of law and even of constitutionalism itself; there simply is no way to constitutionalize and thereby legalize the people’s right to revolution, for example. Lincoln understood that the written Constitution presupposes foundational principles not articulated in the text. But he also saw what Tribe perhaps willfully fails to see: that those foundational principles do not thereby constitute some “invisible Constitution,” because not all of those foundational principles permit governmental acknowledgement, much less enforcement. In this manner, Lincoln gives proper weight to the “common view” of the singular importance of the text of the [*63] Constitution while going beyond that view, whereas Tribe in rejecting that view fails to do justice to the truth contained within it. By focusing too much on the Constitution as a text, Tribe misses the significance of the text of the Constitution.

REFERENCES:

Tribe, Lawrence H. 1999. AMERICAN CONSTITUTIONAL LAW. Eagan, MN: West Publishers.

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