Sept/Oct/Nov 2008

THE UNWRITTEN LAW

Michael O’Donnell


American legal education holds few horrors greater than the wooze-inducing editorial content that pads casebooks on constitutional law. The notes that follow court opinions are either so deadly simple or so impenetrably dense as to frighten law students into pushing their casebooks somewhere to the back of their computer desks so as to plunge into another game of Cornhole. I was put in mind of that avoidance tactic as I read Laurence Tribe’s The Invisible Constitution and came across this mouthful:

A much-lamented deployment of geometric construction emerged in the previously discussed Lochner era, during which the judiciary, while taking a more limited approach to rights construction than would be suggested by libertarianism, nevertheless did not confine its understanding of the fundamental aspects of “life,” “liberty,” and “property” to the enumeration found in the Bill of Rights.

It took me three passes to understand this sentence—which begins a chapter. And by “understand,” I mean, “grasp dimly.”

It might seem churlish to call out Tribe’s writing style; he is, after all, the preeminent progressive scholar of the United States Constitution. But it’s precisely because of his stature in the field that I—and anyone else with a rooting interest in sensible constitutional thought—need him to be a lucidly persuasive advocate. More’s the pity, since the dogged reader of The Invisible Constitution will in fact be rewarded with a number of sharp and provocative ideas. As Tribe explains, the book’s title refers to the “dark matter” that supplements the Constitution’s actual words—i.e., methods of interpretation, structural principles about our form of government, lessons of history—and furnishes the document’s power to operate as a legal instrument. While many law-review articles have covered the same territory, Tribe lends a unique breadth of knowledge, together with an insider’s vantage on some key questions, thanks to his experience as a Supreme Court advocate in such landmark cases as Bush v. Gore (2000) and Bowers v. Hardwick (1986). As a result, this stands as one of the most learned and widest-ranging studies of the limitations involved in rendering legal judgment solely on the basis of the Constitution’s text.

Tribe opens with a renowned—and relatively uncontroversial—example of the invisible constitution at work. In Marbury v. Madison (1803), the Supreme Court adopted the principle of judicial review, holding that the judiciary’s job is to “say what the law is” and to strike down any law that conflicts with the Constitution. But the Constitution itself says nothing of judicial review, which stems instead from the structural protections afforded by the separation of powers. Tribe argues that, thanks to that doctrine’s distinctive mandate—to check governmental power by preserving the independence of the three branches of the federal government—the single most important constitutional decision in Supreme Court history owes its existence to a key doctrine of the invisible constitution.

Much the same dynamic held, Tribe maintains, in the 1997 states-rights ruling Printz v. United States. In that case, the court invalidated a part of the Brady Handgun Violence Prevention Act, which required state and local police officers to conduct background checks on people trying to buy guns. The court acknowledged that “there is no constitutional text speaking to th[e] precise question” of whether the feds can order the states to help enforce a federal regulatory scheme. So the court reached a provocative conclusion: A federal law that “commandeers” states and cities by treating them like federal agencies rather than independent governments is “fundamentally incompatible with our constitutional system of dual sovereignty.”

Tribe points to Printz in order to show that his theory of the invisible constitution doesn’t reinforce any one ideological reading of the Constitution. To the extent that conservatives have successfully marketed such anodyne-sounding credos as “sticking to the text” and “a judge is like an umpire,” Printz serves as a useful corrective. But Tribe’s apolitical brief here is unpersuasive. Most of the invisible rights he discerns fit right into his own liberal political tradition—the right to privacy underlying Roe v. Wade, for instance, or a constitutional prohibition on torture. Tribe defends these rights with resort to what “most people” believe the Constitution means. But “most people” can be reliably mistaken. Besides, the Constitution is supposed to guard against the whim of majorities.

That is not to attack Tribe’s overarching argument that one must look beyond the Constitution’s text in order to understand the document. After all, when the court recently held that lethal injection does not amount to “cruel and unusual punishment,” it first had to decide whether the word cruel means what the founders regarded as cruel, or what seems cruel today, or simply what the dictionary says. While Clarence Thomas took the preposterous first view, he failed to acknowledge that the Constitution doesn’t command such literalist fealty. His reactionary methodology was, in fact, as subjective as conservative jurists imagine liberal legal reasoning to be.

If theorists like Tribe were sharper advocates—and as politically influential as Steven Calabresi and his cohort of Federalist Society champions of the “unitary executive”—Thomas’s shoddy jurisprudence would be more widely recognized for what it is. For that to happen, though, concision and clarity would have to supplant this book’s meandering forays into geometric—and, worse, “geodesic”—schools of interpretation. The stakes of constitutional argument are nowadays much too high for these muddled indulgences. Let them torment second-year law students, but not the body politic.

Michael O’Donnell, a lawyer in Chicago, has contributed reviews to the Los Angeles Times, the San Francisco Chronicle, and the Christian Science Monitor.

Advertisement