Friday, November 7, 2008

The Invisible Constitution

Laurence H. Tribe

There is a great deal more in constitutional law than is contained in the spare, sparse language of the U.S. Constitution. Or at lease Laurence Tribe believes so. Mr. Tribe is a constitutional law professor at Harvard Law School. Other than the justices on the supreme court, there is really no better authority on what constitutional law contains. Yet there is disagreement about this. Justice Antonin Scalia is well known for his strict adherence to the written words of the Constitution.

Consider, however, the words of article IX of the Bill of Rights:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Professor Tribe argues that the words of this clause are a huge gap through which truckloads of rights, unknown to James Madison or John Marshall, can be driven. How, then can we decide what is a right retained by the people and what is a kooky, left wing idea, best left in the dust bin of history?

Tribe offers six methods that jurists have used to think about, and argue for, these invisible constitutional rights. First the geometric construction, connecting the dots between different articles of the constitution. This is how the much argued right to privacy has been derived. Nowhere does the constitution mention the word "privacy." It does say, though "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. " and "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." When you put them together you get a more general concept that the government should leave people alone, especially in their own homes, but also in their possessions and their bodies, in short - privacy.

Another method of constructing constitutional rights described by Tribe are the geodesic - building a dome, like Buckminster Fuller, again out of already existing rights, to protect the freedoms of the individual. The global is another, reinforcing ones argument by reference to laws and practices in other countries. Justice Scalia has been guilty of this practice himself, according to professor Tribe. The geological, unearthing evidence of the intent of the founding fathers in historical sources is the fourth method. The gravitational, where he makes an argument based on Einstein's relativity theory and argues that laws create distortions of the social space time continuum is another. (did I mention that some of this is kind of hard to follow?) And finally the gyroscopic, in which the force of previously made decisions in the court help to stabilize the interpretation of the constitution by weight of their precedent, even when they are wrong.

Professor Tribe is obviously a really smart person and he has had the help of some other really smart people over the years, including a young research assistant who has gone on to bigger things, a fellow named Barry Obama. I tended to go all glassy eyed reading some of Tribe's explanations. Me and Sarah Palin are probably not destined to sit on the Supreme Court, I would guess. He has almost made me a strict constructionist, but then he did convince me that strict constructionists are most strict when construction arguments against things that the personally don't care for and are a lot looser when they argue for something that suits them.


  1. The wonders of the law. A giant lego like building built entirely out of the rather flimsy constructions called precedent. Everything being based on what has come before. We are lucky the foundations are fairly strong and hard to erase.

    The constitution is a difficult document to read at best. I don't pretend to understand it.

  2. Yep - strict constructionists really hate to interfere in the lives of the citizen - except if it has to do with abortion rights.

  3. Everyone has his or her own hot button issues. Abortion is just the flavor of the month for some of our more recently appointed justices.

  4. Good Book!

    Leaves you with a lot of thinking after you read it.

    I say that interpretation of the Constitution is the hardest thing for people to agree on.

    It is a "What makes sense to you, just does not make sense to me!" syndrome.



Comments will be moderated - so keep your comments moderate!

OpenID users will have their blog links again, yay!