The Invisible Constitution

By Gutzman, Kevin R. C. | Texas Review of Law & Politics, Spring 2009 | Go to article overview
Save to active project

The Invisible Constitution

Gutzman, Kevin R. C., Texas Review of Law & Politics

THE INVISIBLE CONSTITUTION. Laurence H. Tribe. Oxford University Press, 2008. Pp. 278. $19.95.

Perhaps no academic is more closely associated with the idea of an "invisible" constitution than Harvard Law School's Laurence H. Tribe. Through his public advocacy, scholarship, legal advocacy, and teaching, Tribe has made great strides in instantiating the idea of the legitimacy of the Constitution that the courts enforce in place of the one the people ratified. His latest book is intended to explain the contours of this Constitution, lay out some fanciful metaphors useful in applying "law" in this way, and advocate further extension of Tribe's analysis.

Geoffrey R. Stone's "Editor's Note" summarizes the book by saying, "As Tribe notes, the visible constitution 'floats in a vast and deep - and, crucially, invisible - ocean of ideas, propositions, recovered memories, and imagined experiences.'" Stone adds, "Indeed, as Tribe demonstrates, many of our most fundamental constitutional principles are not only not stated in the text of the Constitution, but cannot even be inferred from the visible Constitution in any of the usual ways we interpret texts."2

One might conclude from all of this that "many of our fundamental constitutional principles" are not really constitutional at all. He might ask how the "we" of Stone's unselfconscious statements came to enunciate, let alone ratify, them.3 But that is not Tribe's rhetorical style. Rather, Tribe's point is, in my understanding, that if the Constitution does not itself say that the Constitution is in English, that the symbols composing the document are symbols used in written English, and that the meaning of the words used in the Constitution may be determined in the ways commonly accepted by speakers of English, then external authority must be employed in reading the Constitution. Having elicited the unavoidable concession that the Constitution is an artifact of a particular culture, outside of which it would be nothing more than incomprehensible marks on a page, Tribe feels free to conduct a philosophical seminar in which his preferred policy outcomes become "our" Constitution. (Of course, Tribe presents these ideas far less directly than I do, but this is what his argument comes to.) Careful observers will recognize that this précis of The Invisible Constitution describes much of the constitutional history of the past thirty years.

Tribe kicks off his tome with a description of his recent experience as a fifth-grade acquaintance's show-and-tell exhibit.4 The young man took Tribe to class to speak as one who teaches about the Constitution, advises people in foreign countries on establishing constitutions, and argues cases in the Supreme Court.5 As Tribe describes it, this session ended with his authence's fascination with the idea that there should be a dispute about the legitimacy of the Twenty-Seventh Amendment.6 If the subject could mesmerize pre-pubescents, Tribe reasoned, why not develop it at length for a more mature audience?7 Hence, this book.8

Tribe divides his work into five parts, each consisting of numerous subdivisions. The first, apdy enough, is entitled "Beyond the Visible."9 Early in the first part Tribe asks, "What is in the Constitution [that officials are] sworn to uphold? How can we (or they) tell? Would reading it carefully suffice to provide the answers? Would reading it suffice even to get much of a clue? This book should help with such questions."10

Well, yes, it should. But does it? Tribe continues, "For starters, everyone knows the United States of America has a written Constitution."11 Taking up the issue of the Twenty-Seventh Amendment -proposed by Congress to the states in 1789, but unratified until 1992- Tribe posits that it is controversial even what is included in the written document.12

Tribe adduces Justice Antonin Scalia's (to judge by Tribe's account, apparently capricious) statement that the TwentySeventh Amendment did not become part of the Constitution upon the thirty-eighth state's ratification, in illustration of Tribe's own point that there is not general agreement even as to what the written Constitution is.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Invisible Constitution


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?