For the past decade many scholars of the Constitution have debated how to read its text. Particularly they have deliberated how to
solve concrete political and social conflicts given the vague remonstrances of the document. In this brief work fashioned from
previously published articles, Laurence Tribe, one of the nation's most visible constitutional lawyers, and his former student,
Michael Dorf, set forth their position on the issue of textual interpretation. Although Tribe presented aspects of an approach to
textual interpretation in earlier essays, available as the first four chapters of his Constitutional Choices (1985), readers will find the
Tribe and Dorf volume offers a more complete consideration of the problem of textual interpretation.
The heart of the authors' argument is found in their second chapter. Here they propose consideration of the constitutional text
through a process of "constitutional conversation." A constitutional conversation is the reasoned expression of various potential
interpretive choices with "channels" established by the constitutional text. The authors are a bit imprecise in defining the channels
for reading the text. Using textual and case examples, they infer four very general "lessons" to guide constitutional conversations
(p. 45). Also, they suggest that plausible historical and extra- constitutional materials will facilitate the resolution of claims about
constitutional silences and unenumerated rights, such as the right to privacy. But, at bottom, the reading of the Constitution requires
that judges, possessing civic virtue, craft plausible solutions to constitutional conflicts out of the vagaries of the text. These
solutions, the authors recognize, do not always provide legitimate answers to hard questions for all parties or interests, but ongoing
constitutional conflict of a reasonable sort is an acceptable dimension of American public life.
In arguing for constitutional conversation, Tribe and Dorf reject numerous other approaches to reading the Constitution. In their
first chapter they direct
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brief but cogent criticisms at numerous other commentators on the textual interpretation issue. Robert Bork's originalism,
"dis-integration," or the failure to link constitutional analysis of parts of the text to the reading of the whole document as evidenced
in the constitutional jurisprudence of Marc Tushnet and Warren Burger, and "hyper-integration," or the failure to see different
objectives in different parts of the document as manifested in the constitutional analysis of Richard Ely, Jesse Choper, Richard
Epstein, and David Richards, receive pointed criticism. Often this critique of other interpretive methods for reading the Constitution
should be more complete and less facile. More importantly, Tribe and Dorf leave the reader uncertain as to how their method of
constitutional conversation is better able to moderate the difficulties ingrained in the universal readings of the Constitution that they
criticize.
In their final three chapters the authors address the issue of the level of generality to be used in reading constitutional rights. For
example, should Griswold v. Connecticut (1965) be read as creating a right to privacy or just a right for married couples to use
contraceptive devices? Their discussion of the appropriate level of generality is really a constitutional conversation contending with
Justice Antonin Scalia's idea that societal traditions should be the standard used to fix the scope of constitutional rights. Although
the authors do not bare the problems with the value neutrality, measurability, and costs and benefits of Scalia's standard until their
final chapter, they do converse about a more flexible standard. They would first define the appropriate level of generality of a
constitutional right from the Framers' overall philosophy and from precedents. When the level of generality remained in doubt,
judges could rely on widely shared values and the internal logic of prior cases. Final decisions about the construction of a level of
generality for a right would involve testing by through the consideration of the truth and falsity of counter examples. In reading
rights the authors opt again for a pragmatic legal process.
The discussion of the level of generality has three limitations. First, should political values as important as rights be left to the
uncertainty of pragmatic judicial interpretation? The authors need to present more evidence to justify why a fixed or universalistic
reading of rights is inappropriate and whether it is wise politically to tolerate an unsettled conception of rights. Second, for reasons
that are not clear, the authors do not discuss the other salient problem in reading rights -- the level of scrutiny issue (p. 73). Unlike
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the discussion of generality, which considers the scope of the meaning of a right in a "horizontal" fashion, scrutiny considers the
"vertical" dimension of reading rights. Scrutiny analysis raises the question of whether a right is "fundamental" or in a privileged
position that demands the evidence and burden of proof demanded to deny a rights claim must be "compelling." Clearly any
complete discussion of how to read rights needs to attend to this issue. Finally, the authors should exercise more care in their
treatment of Scalia's level of generality standard. The level of generality that they accuse Scalia of using is asserted in a footnote
to Michael H. v. Gerald D. (1989). It has yet to appear in distinct language in the Justice's other opinions.
Students of law and politics will find little overt discussion of the politics of constitutional law in this book. However, this is a
political book. Tribe and Dorf's method of constitutional conversation buttresses the classical liberal idea that law is separate from
politics and that law should channel political choice. They leave the reading of the Constitution to persons schooled in the
interpretive practices of legal communities accustomed to respecting law and the symbolic political power of the Constitution.
Although the authors encourage a pragmatic and conflictual reading of the Constitution that might appear as more open,
participatory, and arbitrary than the universalistic interpretive standards advance by other law professors, theirs is a process
inclined to reproduce constitutional understandings and the symbolic power of the Constitution. Theirs is not a way of reading the
Constitution that involves interpretive or political communities who question the liberal or legalistic assumptions of approaches to
constitutional interpretation offered by legal professionals.
A provocative, well argued book.
A lively and important contribution to the continuing dialogue on constitutional interpretation… [The book] serves to remind us of the trouble we make for ourselves when we assume that we can predict the conclusions of the original intentionalist, that liberals are always activists and conservatives never, or that the protections of liberty afforded by a living Constitution have all come from only one ideological camp.
This book amounts to an energetic and often highly illuminating discussion of how constitutional interpretation inevitably involves substantive choices but is not simply a matter of making things up… On Reading the Constitution reminds us of the extent to which our understanding of constitutional interpretation remains in a primitive state… Tribe and Dorf’s book counts as an unusually articulate contribution to the large number of recent works attempting to justify, to preserve, and to extend the work of the Warren Court.
New Republic - Cass Sunstein
[A] well-argued and clearly written volume… By the clarity and persuasiveness of their detailed analysis of particular cases, they…establish that progress is made most securely when one proceeds with caution and humility.
Cambridge Law Journal - T. R. S. Allan
