I have mixed feelings about this book. On one hand I rather like it, on the other I have to admit that it's so exploratory that it hardly counts as a book. I enjoyed the book and admired it's long discussion on limiting the scope of its argument.

The book is essentially an argument against pure textualism. It argues that there are things in the constitution that are not in the text, and cannot be logically in the text. It's different from an unwritten constitution argument that seeks to legitimize actions based on institutional practice or historical turning points (i.e. The Civil War, New Deal, and Ratification). Some of the interesting examples Tribe brings up are, the ninth amendment (which explicitly points to a bundle of rights but not how to identify them), the validity of the 27th amendment, how to interpret amendments that rewrite parts of the constitution and principles such as the dormant commerce clause. Tribe makes the note that, the Constitution does not have explicitly discuss how to interpret it, and such an interpretive rule would need an interpretive rule, ad infinitum. There's also a tantalizing reference to Godel's incompleteness theorem in the book. Tribe stresses that the concept of an invisible constitution is not political, though he clearly leans that way (with his interpretation of the second amendment and critiques of Scalia).

The book is honest in its limitations, and flatly does not answer many of the interesting question it raises, this can be a bit frustrating. Additionally, the metaphors that Tribe uses can get a little complex and obtuse. He suggests using six analogies (geometric, gyroscopic, gravitational, global, geodesic and geological) to help give the invisible constitution shape. While really fascinating, I wonder how much light these analogies actually help shed on the concept. The drawings (yes hand drawings) actually are alot more complex than the ideas themselves. Tribe uses a ton of physics analogies (invisible constitution as dark matter for example), which makes the book interesting but a little out of hand. It's an excellent book for anyone who thinks law is boring, but will probably leave you thirsting for more rather than satisfied. Take that as you will. ( )

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.

I'll Never Forget The Day I Read A Book!