Sunday, March 15, 2009

Tribe's Invisible Constitution

Constitutional scholars are inclined to dub their favorite conceptions of American constitutionalism as a Constitution of a certain kind. Herlaurencehtribe12.jpge are some examples: the living Constitution, the perfect Constitution, the strategic constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, the dead Constitution, the enduring Constitution, and the Constitution in exile. Laurence Tribe, one of the most influential constitutional scholars of the twentieth century, has now added to this list with his new book, The Invisible Constitution. Anything Tribe writes is worth the read, especially one taking a stand on the jurisprudence of constitutional law. In this book, Tribe sets himself two goals. First, he wants to demonstrate that there exists an invisible Constitution which is as authoritative as the written Constitution; indeed, in some respects, it is even more authoritative. Second, he proposes several models for discerning just what this invisible Constitution says. Here is his statement of the invisible Constitution.

[I]t seems obvious that we must have an invisible Constitution as well as a visible one: it's the invisible Constitution that tells us what text to accept as the visible Constitution of the United States, as well as how much force to ascribe to that text. True, we can argue endlessly about just what the invisible Constitution says--but that doesn't distinguish it from the visible Constitution, whose meaning, and even whose contents, are often very much in contention. The visible Constitution most of us have come to accept or at least to work within certainly doesn't answer very many persistent questions about what it means in any particular case and at any particular time. (p. 7)

The invisible Constitution is necessary for us to understand the visible Constitution in the first place. Many questions we ask about the Constitution and its implications are not contained in either the text or in the original meaning of the Constitution. For Tribe "the visible Constitution necessarily floats in a vast and deep--and, crucially, invisible--ocean of ideas, proposition, recovered memories, and imagined experiences that the Constitution as a whole puts us in a position to glimpse." (p. 9) This view differs from the idea of an unwritten Constitution in two ways: (1) Tribe's task is not an attempt to justify unelected judges monitoring the constitutional choices of other constitutional actors. Rather, it applies to anyone attempting to interpret the Constitution. (2) More importantly, Tribe's "interest is less in what's invisible "around" the Constitution than in what is invisible within it." (p. 10) Consequently, Tribe is not taking sides on the issue of whether the Court is or should the proper constitutional actor to have the final say on constitutional meaning. His task is to seek the extra-textual constitutionality within the textual constitution itself for any interpreter of the Constitution.

According to Tribe, none of the conventional questions about interpretation can make sense independently of the invisible Constitution. For example, concerning the use of originalism and history in constitutional interpretation, Tribe insists that our job is to determine whether rules,

retain their 'original meaning' as reflected in the authors' specific expectations or believe instead that such rules express more general principles or concepts that need to be adapted to changing circumstances if they are to remain faithful to their original purposes. Deciding what the relevant 'history' . . . is, as well as discovering the facts pertinent to that history, will entail making fundamental choices about what fidelity in historical and purposive interpretation means about what kind of rule we are dealing with, and about the appropriate frame of reference through which (and the appropriate level of generality at which) to understand the history bearing on that sort of rule, And for none of those choices should we expect much guidance from the text--from the visible Constitution. (p. 67)

Tribe is surely correct that these questions must be answered in order for us to appeal to textual provisions and apply them to particular constitutional controversies. But why should these extra-textual activities suggest the existence of an invisible Constitutional. Ordinarily, these questions are part of constitutional theory or constitutional jurisprudence and do not suggest the existence of an invisible Constitution in any illuminating sense.

The major problem with Tribe's project is the distinction between what is in the Constitution and what's around it. This distinction is not pellucid and simply will not do the work Tribe needs it to do in order to distinguish his position from those advocating the unwritten Constitution and other forms of extra-textual constitutionality. However, Tribe needs to distinguish his position from these scholars if his "invisible Constitution" is to retain any uniqueness or for Tribe's views to make an original contribution to constitutional theory at all. His penchant for insisting that there exist "invisible, nontextual foundations" (p. 11) to the visible Constitution doesn't add much to the work of such different constitutional scholars as Bruce Ackerman, Ronald Dworkin, and Thomas Grey, among many others. Tribe is not merely speaking of non-textual presumptions, assumptions, or implicit rights and powers. He seems to be making an astonishing ontological claim that there exists an independent, coherent invisible Constitution that if made visible (textual) would constitute a distinctly different and independent constitutional document than the written Constitution. If Tribe's view doesn't reveal such a "document," it really becomes indistinguishable from the views of those scholars that acknowledge the existence and importance of extra-textual constitutionality, the necessarily oil that makes the engine of the written Constitution work.

Where Tribe's position promises to be original is in providing a method according to "which we might best visualize and articulate the rules, principles, and rights that are part of out Constitution but are not discernible in or directly derivable from portions of its text." (p. 155) The process of visualizing the rules and rights in the invisible Constitution is more "a question amenable in the first instance less to theory than to observation." (Id.) Tribe suggests six models for observing the invisible Constitution. In fact, Tribe identifies "six distinct but overlapping modes of construction in forming the invisible constitution: geometric, geodesic, global, geological, gravitational, and gyroscopic." (Id.) These models are drawn in color, different colors having independent significance for identifying different aspects of the invisible Constitution. (The diagrams are presented between pages 156-57. ) Here's where an overwhelming difficulty in Tribe's presentation occurs. There is absolutely no real guidance in how to tmpphp4r6wcp.jpgunderstand these diagrams. Perhaps for those with a sufficient background in the sciences, including the idea of the 'dark matter' they're supposed to discover, these models will make some intuitive sense, but they will make no sense to many others. How many constitutional scholars will find these diagrams useful, let alone perspicuous? Indeed, how many intellectuals generally or educated members of the general public will appreciate the significance of these diagrams? Certainly law students will be mystified. I make no claim about whether the models Tribe describes are accurately illustrated by his diagrams. Indeed, it's difficult to appreciate what counts as "correct illustrations" in this context. Unfortunately, this leaves us in the unenviable position of having no way to know whether these models have the capacity to identify Tribe's invisible Constitution. One thing we can be pretty certain of is this. Whether these models identify the invisible Constitution, even if we can supply an intelligible notion of what that means, it will not be obvious that they do so. One is only left to puzzle over what possessed this first-rate constitutional scholar to indulge his own idiosyncratic predilections in constructing these models--which he obviously finds illuminating--and present them as illuminating vehicles for understanding something called the "invisible Constitution." Unfortunately, together with the unoriginality of the first part of his book--in positing the existence of an invisible Constitution in contrast to an unwritten Constitution, and other forms of extra-textual constitutionality--and the incomprehensibility of the second part of this book, one can only ruefully conclude that this book is disappointing. This does not mean there is nothing of value in this book. Tribe aptly demonstrates that textual constitutionality cannot be understood without non-textual assumptions. But this is hardly novel. So-called non-interpretivists, realists, pragmatists and others have been urging this conclusion for the past several decades. Moreover, such a demonstration says nothing about the existence of anything accurately called "the invisible Constitution" or the models for identifying its existence. I conclude reluctantly that the Invisible Constitution will not provide a significant addition to the work on extra-textual constitutional meaning.


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