The Invisible Constitution

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The Invisible Constitution Pub. Date: 9/17/2008 Publisher: Oxford University Press, USA

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Overview

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 matter: 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.

Editorial Reviews

Library Journal

Tribe (constitutional law, Harvard) a leading constitutional scholar, carefully argues that the text of the Constitution is silent on many of the most fundamental questions of constitutional law. He argues that these questions are addressed through underlying principles that create an "invisible constitution." He shows that these principles apply to a range of topics from the earliest constitutional interpretation to present controversies. Tribe defines the terrain of the invisible Constitution by exploring beyond the document's text and offering a half-dozen models to determine this "invisible" architecture. It is this architecture that provides the rationale for including foundational principles behind the written text when arriving at new interpretations of constitutional meaning. Tribe argues that these foundational principles create strong bonds that underlie the textual guarantees, which lead to answers on relevant questions that the written Constitution cannot provide. His original views here are carefully distinguished from the ideas of an "unwritten Constitution." His provocative analysis and arguments will challenge readers' understanding of constitutional provisions. Strongly recommended for all academic libraries.
—Steven Puro

Product Details

ISBN-13: 9780195304251
Publisher: Oxford University Press, USA
Publication date: 9/17/2008
Pages: 224
Sales rank: 536,463
Series: Inalienable Rights Series
Product dimensions: 5.80 (w) x 8.30 (h) x 1.10 (d)

Meet the Author

Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard University. He has published more than 100 books and articles, including American Constitutional Law, On Reading the Constitution, and Abortion: The Clash of Absolutes. In addition, he has argued more than three dozen cases before the Supreme Court of the United States and has frequently testified before Congress on a broad range of constitutional issues.

Editor's Note Preface Acknowledgements
Part I: Beyond the Visible
Identifying "The Constitution"
Distinguishing "The Constitution" From "Constitutional Law"
Remembering Ours is a "Written" Constitution The Variable Role of Interpretive Judicial Precedent The "Dark Matter"
Part II: Defining the Terrain
Invisibility Defined Not Necessarily an Ideal Constitution Constitutional Axioms and Constitutional Theorems The Politics of Constitutional Invisibility This Book's Mission: Making Invisibility Visible Supreme Law, Not the Supreme Court The Constitution's Architecture, Not its "Construction"
Part III: Explorations Beyond the Text
Invisibility Exemplified: The Moving Finger Writes Cleo's Claims Doubling Back: The Holistic Reading Rule Two Types of Extratextual Norms Invisibility Illuminated: A Government of Laws Invisibility Elaborated: Government of the People, By the People, For the People Invisibility Further Illustrated: Suspending Habeas Corpus Federalism - and "the Right of the People to Keep and Bear Arms"
States as Sovereigns?
Part IV: The Content of Liberty and Equality and the Boundaries of Government Power
The "Substantive Due Process" Conundrum The Jagged Road to Equality The Reapportionment Revolution Lochner and Selective "Incorporation"
From Liberty of Contract to Forms of Self-Government Intimate Association and Private Self-Government The Maintenance of Boundaries: From Territoriality to Privacy
Part V: Visualizing the Invisible
Once Again: The Ninth Amendment's Rule of Construction The Inescapable Role of Constitutional "Dark Matter"
The Analogy to Gödel's Incompleteness Theorem Organizing the Constitution's "Dark Matter"
Illustrations following page 156
1. Geometric Construction
2. Geodesic Construction
3. Global Construction
4. Geological Construction
5. Gravitational Construction
6. Gyroscopic Construction Geometric Construction Time's Geometry A Libertarian Presumption Lochner's Legacy Revisited Geodesic Construction Global Construction Geological Construction Gravitational Construction Gyroscopic Construction Coda: Concluding Observations Sources The Visible Constitution: Its Text and Accompanying Resolutions The Declaration of Independence Index

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