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. …