Lost in Space: Laurence Tribe's Invisible Constitution

Abstract

For over two hundred years, scholars, judges, and constitutional theorists have debated whether the American people possess fundamental rights and liberties beyond those derived from the explicit text of the United States Constitution. Now, one of the most prominent constitutional lawyers of our generation and our chief legal doctrinalist, Laurence Tribe, has tried to contribute to this discourse with his book The Invisible Constitution. Unfortunately, where the book is transparent, Professor Tribe doesn't cover new ground in suggesting that much of our constitutional doctrine cannot be gleaned from the text of the Constitution. Many scholars have emphasized our unwritten Constitution and Professor Tribe's substitution of the word "invisible" for "unwritten" does not advance the debate. Where Professor Tribe tries to break away from conventional analysis, he employs unhelpful space metaphors, obscure drawings and new labels for constitutional analysis that are opaque and difficult to understand, even for the sophisticated reader. Although Professor Tribe is no doubt correct that our Constitution stands for much more than is in its text, his new book fails to illuminate the implications of that reality or to help us discern the contours of what he calls the Invisible Constitution.

Keywords: constitutional interpretation, constitutional doctrine, fundamental rights, constitution,

JEL Classification: K00, K10