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The Invisible Constitution
As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.
In The Invisible Constitution , Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and
principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.
Remarkably original, keenly perceptive, and written with Tribe's trademark analytical flair, this latest volume in Oxford's Inalienable Rights series offers a new way of understanding many of the central constitutional debates of our time.
About the Combining authority with wit, accessibility, and style, Very Short Introductions offer an introduction to some of life's most interesting topics. Written by experts for the newcomer, they demonstrate the finest contemporary thinking about the central problems and issues in hundreds of key topics, from philosophy to Freud, quantum theory to Islam.
In The Invisible Constitution , Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and
principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.
Remarkably original, keenly perceptive, and written with Tribe's trademark analytical flair, this latest volume in Oxford's Inalienable Rights series offers a new way of understanding many of the central constitutional debates of our time.
About the Combining authority with wit, accessibility, and style, Very Short Introductions offer an introduction to some of life's most interesting topics. Written by experts for the newcomer, they demonstrate the finest contemporary thinking about the central problems and issues in hundreds of key topics, from philosophy to Freud, quantum theory to Islam.
278 pages, Hardcover
First published January 1, 2008
32 people are currently reading
221 people want to read
About the author
Laurence H. Tribe
27 books51 followersLaurence Henry Tribe es un académico estadounidense que es profesor de la Universidad Carl M. Loeb en la Facultad de Derecho de Harvard de la Universidad de Harvard. La beca de Tribe se centra en el derecho constitucional estadounidense. También trabaja con la firma Massey & Gail LLP en una variedad de asuntos.
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Displaying 1 - 14 of 14 reviews
March 30, 2024
Although short, this is a complex and academically oriented book written by one of the most widely recognized constitutional experts in the country. Tribe describes the Constitution, its words that are visible on the page, and the invisible Constitution, those words that are not. He sites the Ninth Amendment as evidence of his view. "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people".
The Framers understood that if the document were to contain every last right of the people, they would inevitably leave some out rendering the document useless in the face of modern day America. Its length would also make it unmanageable. As an undergraduate studying political science, I remember my professors discussing how many state constitutions were full of "dead wood"- that is, they included so many specifics that they were unmanageable and unworkable.
I read the book as a repudiation of so-called originalist theorists like Antonin Scalia whose arguments limited the documents' ability to remain relevant in a constantly changing society. As Erwin Chemerinsky points out in his excellent book, "Worse Than Nothing", those who espouse the view are selective about where they impose it. It is rife with hypocrisy and even dangerous to the stability of the country.
My interpretation of the Invisible Constitution mirrors that of William O Douglas who saw it as the "penumbras" of the document, referring to the Griswold case which found that denying birth control to married couples was an invasion of their right of privacy- it was later expanded to unmarried people. Tribe references Miranda to prove his case. The Court found that custodial interrogations could undermine the inherent right of defendants against self-incrimination and to help ensure that confessions would be voluntary. Since that time, Miranda warnings have become part of the culture.
I recommend this book because it really does help ordinary American citizens, like myself, to reach a deeper understanding of the Constitution.
The Framers understood that if the document were to contain every last right of the people, they would inevitably leave some out rendering the document useless in the face of modern day America. Its length would also make it unmanageable. As an undergraduate studying political science, I remember my professors discussing how many state constitutions were full of "dead wood"- that is, they included so many specifics that they were unmanageable and unworkable.
I read the book as a repudiation of so-called originalist theorists like Antonin Scalia whose arguments limited the documents' ability to remain relevant in a constantly changing society. As Erwin Chemerinsky points out in his excellent book, "Worse Than Nothing", those who espouse the view are selective about where they impose it. It is rife with hypocrisy and even dangerous to the stability of the country.
My interpretation of the Invisible Constitution mirrors that of William O Douglas who saw it as the "penumbras" of the document, referring to the Griswold case which found that denying birth control to married couples was an invasion of their right of privacy- it was later expanded to unmarried people. Tribe references Miranda to prove his case. The Court found that custodial interrogations could undermine the inherent right of defendants against self-incrimination and to help ensure that confessions would be voluntary. Since that time, Miranda warnings have become part of the culture.
I recommend this book because it really does help ordinary American citizens, like myself, to reach a deeper understanding of the Constitution.
August 12, 2009
If you have ever been mildly annoyed to infuriated when confronted by Right wing talking points asserting that the Constitution is being dismantled by "liberal activist" justices, this book is for you.
Professor Tribe does an excellent job of explaining, in a logical and rational fashion, that the social liberties that we take for granted today - racial and gender equality under the law, reproductive rights (both contraceptives and abortion), and privacy rights, are all firmly grounded in the *structure* of the Constitution, even if certain "magic words" never appear in the actual text.
The real value in this book is that Professor Tribe establishes that these rights - which to many of us, including myself, are simply common sense "natural law" rights to ensure equality - exist in the structure of the Constitution and its amendments, from the Ninth Amendement, as underused as it may be, to the Contract Clause. This book cannot be dismissed as flowery 60's rhetoric which has no boundaries, a la the unfortunate "penumbras and emanations" language from Griswold v Connecticut.
The downfall of this book is the writing style and intended audience. While at times crisp, too often Professor Tribe commits the cardinal sins of rhetoric - writing like not only an academic, but like a lawyer. Crisp legal and intellectual concepts get buried in subordinate clauses and qualifying digressions.
Regarding the second point, Professor Tribe apparently assumes that the reader has a Juris Doctor, attended enough law school to get through Constitutional law, or otherwise studied Supreme Court jurisprudence as an undergrad or graduate student. If the terms and phrases "the Lochner Era", "substantive and procedural due process", and "privileges and immunities" (to name a few) ring no bells for you, you will find some parts of this book a slog, because the book assumes that you have that knowledge. Frankly, even if you recall those terms (and I say that as someone who has studied Constitutional law), parts of the book will be a slog because of the elliptical and unnecessarily unclear writing style.
Which is a shame, because the thesis here deserves a larger audience, and everyday Americans should understand that the Constitution is a road map toward a more perfect union, not a blueprint circumscribing the limits of our freedom.
Professor Tribe does an excellent job of explaining, in a logical and rational fashion, that the social liberties that we take for granted today - racial and gender equality under the law, reproductive rights (both contraceptives and abortion), and privacy rights, are all firmly grounded in the *structure* of the Constitution, even if certain "magic words" never appear in the actual text.
The real value in this book is that Professor Tribe establishes that these rights - which to many of us, including myself, are simply common sense "natural law" rights to ensure equality - exist in the structure of the Constitution and its amendments, from the Ninth Amendement, as underused as it may be, to the Contract Clause. This book cannot be dismissed as flowery 60's rhetoric which has no boundaries, a la the unfortunate "penumbras and emanations" language from Griswold v Connecticut.
The downfall of this book is the writing style and intended audience. While at times crisp, too often Professor Tribe commits the cardinal sins of rhetoric - writing like not only an academic, but like a lawyer. Crisp legal and intellectual concepts get buried in subordinate clauses and qualifying digressions.
Regarding the second point, Professor Tribe apparently assumes that the reader has a Juris Doctor, attended enough law school to get through Constitutional law, or otherwise studied Supreme Court jurisprudence as an undergrad or graduate student. If the terms and phrases "the Lochner Era", "substantive and procedural due process", and "privileges and immunities" (to name a few) ring no bells for you, you will find some parts of this book a slog, because the book assumes that you have that knowledge. Frankly, even if you recall those terms (and I say that as someone who has studied Constitutional law), parts of the book will be a slog because of the elliptical and unnecessarily unclear writing style.
Which is a shame, because the thesis here deserves a larger audience, and everyday Americans should understand that the Constitution is a road map toward a more perfect union, not a blueprint circumscribing the limits of our freedom.
February 11, 2022
We hold these traits to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights”
. ... ―The Declaration of Independence
Editor’s Note
The Invisible Constitution is a powerful read in that it encourages readers to look at the U.S. Constitution and The Declaration of Independence from a different mindset. Chapter 1 opens asking us basic questions assuming we already know the answers.
Author Tribe asks us to think of the Constitution in the following ways.
1) What the words meant to those who wrote them.
a) those who debated and ultimately ratified them, or to the ordinary person in the public to whom they were originally addressed.
b) or to readers of the text at the time it is being interpreted and applied.
c) are there issues that the Constitution own text can’t hope to resolve …
Much is covered in The Invisible Constitution and is written for those who do not revisit the U. S. Constitution on a regular basis.
What I most appreciated was the last section The Visible Constitutions It’s Text and Accompanying Resolutions
The Invisible Constitution is an essential read in that it educates readers on how America is supposed to be governed.
Editor’s Note
The Invisible Constitution is a powerful read in that it encourages readers to look at the U.S. Constitution and The Declaration of Independence from a different mindset. Chapter 1 opens asking us basic questions assuming we already know the answers.
Author Tribe asks us to think of the Constitution in the following ways.
1) What the words meant to those who wrote them.
a) those who debated and ultimately ratified them, or to the ordinary person in the public to whom they were originally addressed.
b) or to readers of the text at the time it is being interpreted and applied.
c) are there issues that the Constitution own text can’t hope to resolve …
Much is covered in The Invisible Constitution and is written for those who do not revisit the U. S. Constitution on a regular basis.
What I most appreciated was the last section The Visible Constitutions It’s Text and Accompanying Resolutions
The Invisible Constitution is an essential read in that it educates readers on how America is supposed to be governed.
Read
September 1, 2010Thankfully, Tribe is an unapologetic liberal; that is refreshing and important to understand when reviewing his work contained in "The Invisible Constitution." That said, while Tribe frequently points out both the constitutional hypocrisies on the right and the left, his thesis is riddled with hypocrisy. Nonetheless, the book, and more importantly, his thesis, is tolerable to the point that he makes a salient point, one that, if Scalia was honest with himself, could not dispute. Tribe's salient point being: of course the principles embodied in the Constitution are both written and unwritten. Clearly, the Founders understood this when debating the addition of a Bill of Rights. Madison insisted they were not needed; whereas Jefferson argued that without the declaration of certain rights not directly expressed in the text of the Constitution, the liberty of the citizens will be in jeopardy.
While I mostly disagree with Tribe's political understanding of what the invisible Constitution says or may say, I do agree that it must be acknowledged that analysis of the text inherently, and with some necessity, takes us beyond those borders.
While I mostly disagree with Tribe's political understanding of what the invisible Constitution says or may say, I do agree that it must be acknowledged that analysis of the text inherently, and with some necessity, takes us beyond those borders.
July 6, 2020
I can't claim to embrace Professor Tribe's view of constitutional law - which is why I thoroughly enjoyed his perspective. Noting that many of the elements that we adhere to in governance are not expressly in the Constitution, but implied therein, Tribe makes a cogent argument for judicial interpretation embracing a non-textualist and living constitution model. His models of geodesic, geologic, global and others felt strained, and the illustrations were difficult to decipher. Nevertheless, Tribe is a brilliant mind and effective writer, every person interested in constitutional law should read the book and ponder on his positions.
May 17, 2016
I have mixed feelings about this book. On one hand I rather like it, on the other I have to admit that it's so exploratory that it hardly counts as a book. I enjoyed the book and admired it's long discussion on limiting the scope of its argument.
The book is essentially an argument against pure textualism. It argues that there are things in the constitution that are not in the text, and cannot be logically in the text. It's different from an unwritten constitution argument that seeks to legitimize actions based on institutional practice or historical turning points (i.e. The Civil War, New Deal, and Ratification). Some of the interesting examples Tribe brings up are, the ninth amendment (which explicitly points to a bundle of rights but not how to identify them), the validity of the 27th amendment, how to interpret amendments that rewrite parts of the constitution and principles such as the dormant commerce clause. Tribe makes the note that, the Constitution does not have explicitly discuss how to interpret it, and such an interpretive rule would need an interpretive rule, ad infinitum. There's also a tantalizing reference to Godel's incompleteness theorem in the book. Tribe stresses that the concept of an invisible constitution is not political, though he clearly leans that way (with his interpretation of the second amendment and critiques of Scalia).
The book is honest in its limitations, and flatly does not answer many of the interesting question it raises, this can be a bit frustrating. Additionally, the metaphors that Tribe uses can get a little complex and obtuse. He suggests using six analogies (geometric, gyroscopic, gravitational, global, geodesic and geological) to help give the invisible constitution shape. While really fascinating, I wonder how much light these analogies actually help shed on the concept. The drawings (yes hand drawings) actually are alot more complex than the ideas themselves. Tribe uses a ton of physics analogies (invisible constitution as dark matter for example), which makes the book interesting but a little out of hand. It's an excellent book for anyone who thinks law is boring, but will probably leave you thirsting for more rather than satisfied. Take that as you will.
The book is essentially an argument against pure textualism. It argues that there are things in the constitution that are not in the text, and cannot be logically in the text. It's different from an unwritten constitution argument that seeks to legitimize actions based on institutional practice or historical turning points (i.e. The Civil War, New Deal, and Ratification). Some of the interesting examples Tribe brings up are, the ninth amendment (which explicitly points to a bundle of rights but not how to identify them), the validity of the 27th amendment, how to interpret amendments that rewrite parts of the constitution and principles such as the dormant commerce clause. Tribe makes the note that, the Constitution does not have explicitly discuss how to interpret it, and such an interpretive rule would need an interpretive rule, ad infinitum. There's also a tantalizing reference to Godel's incompleteness theorem in the book. Tribe stresses that the concept of an invisible constitution is not political, though he clearly leans that way (with his interpretation of the second amendment and critiques of Scalia).
The book is honest in its limitations, and flatly does not answer many of the interesting question it raises, this can be a bit frustrating. Additionally, the metaphors that Tribe uses can get a little complex and obtuse. He suggests using six analogies (geometric, gyroscopic, gravitational, global, geodesic and geological) to help give the invisible constitution shape. While really fascinating, I wonder how much light these analogies actually help shed on the concept. The drawings (yes hand drawings) actually are alot more complex than the ideas themselves. Tribe uses a ton of physics analogies (invisible constitution as dark matter for example), which makes the book interesting but a little out of hand. It's an excellent book for anyone who thinks law is boring, but will probably leave you thirsting for more rather than satisfied. Take that as you will.
April 6, 2009
Tribe's writing style is nothing short of atrocious. He has an especially bad habit of being cavalier with the use of abstractions. I suppose this is what happens when you spend your entire life teaching constitutional law at HLS, no offense to the professors at HLS. This isn't to say that Tribe doesn't make some good points. But whether it is worth the time to separate the wheat from the chaff? That's another matter entirely.
August 3, 2011
I don't know if I really learned anything except I confirmed that you can't be a strict constructionalist because a lot of what they say is "in" the Constitution really isn't. It's only through interpretation of what's written and not written can one affectively apply Constitutional principles.
November 15, 2008
Laurence Tribe is the mind of a generation.
August 24, 2009
A bit dense at times, but worth a read.
December 5, 2008
I wanted to like this book a lot, and I think he was getting at some important points about the constitutional "stuff" that's not in the constitution. Problem is, I found it too dry & slow to finish.
June 11, 2009
A great book for anyone who wants to learn about the intricacies of the U.S. Constitution.
March 2, 2010
Though Constitutional Law is my practice and passion, I could not finish this book. It either lacked substance or went over my head.
Displaying 1 - 14 of 14 reviews