On Judicial Interpretation
The “parlor game” of appealing to the Founding Fathers
Not until page 201 of his erudite book The Invisible Constitution does Laurence H. Tribe drop the name of a one-time research assistant: “a remarkable young man who was then my student but who has since gone on to astonishing and inspiring achievements in his own right, Barack Obama.” The reference is entirely gratuitous and a little embarrassing for a reader who admires Tribe’s intellect and was hoping he’d get through his slender text (it’s only 211 pages, excluding notes and appendices) without advertising his relationship with the most famous former editor of the Harvard Law Review.
I am not implying that Tribe—’62, G ’63, J.D. ’66, Loeb University Professor and professor of constitutional law, author of numerous influential scholarly books and articles, and celebrated advocate who has argued more than three dozen cases before the Supreme Court of the United States—went out of his way to lavish praise on his one-time acolyte in hopes that Obama would soon be in a position to nominate justices to the highest court in the land. Not at all.
After reading this penetrating volume, I am confident that Tribe, a perennial presence on potential nominee lists during the Clinton years, has decided, once and for all, to take his name out of contention.
How do I know this? Well, first there’s the very subject of the book, published last fall, a couple of months before Election Day. Tribe argues that without something called the “invisible Constitution,” neither we—nor the jurists in black robes—can understand the plain written one. “The visible Constitution,” he writes, “necessarily floats in a vast and deep—and, crucially, invisible—ocean of ideas, propositions, recovered memories, and imagined experiences that the Constitution as a whole puts us in a position to glimpse.”
Picture the confirmation hearing before the Senate Judiciary Committee. A Republican leans into his microphone and asks, “So, Professor Tribe, can you explain to us which of your ‘recovered memories’ and ‘imagined experiences’ you would bring to bear when deciding whether to preserve Roe v. Wade or extend a constitutional right to marriage for same-sex couples?”
That wouldn’t be the end of it, either. Tribe has made the bold choice of illustrating his book with six glossy pages of jurisprudential doodles: winsome renderings in bright blue, green, and yellow Magic Marker of a half-dozen methods for “constructing” the invisible Constitution. These he has entitled “Geometric Construction,” “Geodesic Construction,” “Gyroscopic Construction,” and three other types of construction that begin with the letter “G.”
It’s hard to capture in words the glee that young Republican Senate staffers would experience as they skipped off to a Capitol Hill Kinko’s to reproduce easel-mounted versions of the scholar’s artworks, each of which he helpfully signed “LT 2/08,” leaving little room to claim that his publisher slipped in the illustrations as some sort of joke. The blown-up sketches would never get out of the television shot. Even Dick Cheney’s crew would have to classify the ensuing interrogation as torture.
But I am not here (exclusively) to tease Professor Tribe. His book, dubious illustrations notwithstanding, is a serious and helpful meditation on constitutional interpretation. The fact that it probably kills any chance he’d have to put his provocative ideas into practice on the federal bench is a sad reflection not on Tribe, but on our shallow judicial politics.
Tribe argues persuasively that the most conservative jurists on the closely divided Supreme Court—chiefly Antonin Scalia, LL.B. ’60, and Clarence Thomas—get it wrong when it comes to deciphering our foundational legal document. The originalists, as they are known, contend that judges can look only to the literal words of the Constitution and the “original” understanding of those words held by the men who wrote and ratified them. That’s why the conservatives find it laughable that anyone could ground in the Constitution a woman’s right to choose to seek an abortion. The Constitution doesn’t mention abortion. The Founding Fathers would never have countenanced the act. Case closed.
Not so fast, Tribe says. Jurists of all stripes derive their interpretive principles from sources outside the text of the Constitution, and many of these principles cannot even be traced directly to the document’s words. My favorite example of this seemingly self-evident but often-obfuscated observation is the basis of originalism itself. The Constitution nowhere instructs its inheritors to interpret its opaque terminology (“equal protection,” “due process,” “cruel and unusual punishments”) according to the original understanding of its drafters. The Constitution doesn’t offer guidance on whether to read those terms as static or evolving. There’s an argument to be made that the Founders’ intent deserves special deference, or maybe even something approaching exclusive deference. But such ideas are drawn from someone’s version of what Tribe calls the invisible Constitution: the unwritten premises and intuitions and experiences that have accumulated over more than two centuries of law and politics in America.
Tribe’s liberal version of the invisible Constitution is no secret, and he does not elaborate much on the substance of his views in this book. He believes that judges—whether they lean left or right—inevitably champion the values they perceive as underlying or animating the ambiguous admonitions and protections outlined in the Constitution. In articulating those values, judges give meaning to a phrase like “equal protection.” For him those words, applied to questions of racial relations, can be used not only to strike down intentional segregation but also to uphold race-conscious policies (“affirmative action”) that seek to remedy the lingering injustices of slavery and Jim Crow. For Justice Scalia, equal protection suggests that race can never be taken into account in any way in forming public policies. That’s a legitimate argument. Tribe’s point here is only that it can’t be settled by simplistic appeals to literalism or the parlor game of WWJMD (What Would James Madison Do?).
As for the doodles—well, some of them I just didn’t get. For all its vectors and protractor-drawn circles, Geometric Construction left me baffled. (Don’t feel bad if you have the same reaction; after all, Tribe’s undergraduate concentration was mathematics.)
Geodesic Construction, by contrast, is much easier to understand. Tribe has scribbled a many-faceted form similar to the geodesic domes made famous by Buckminster Fuller ’17. He suggests that a large body of famous constitutional rulings make more sense if they are seen as the triangular facets that comprise the geodesic surface. Beneath the facet that is the landmark Miranda v. Arizona decision that yielded “You have the right to remain silent,” and other warnings to criminal suspects, lies the core Fifth Amendment protection against coerced self-incrimination. Beneath the decisions establishing the “exclusionary rule”—which requires courts to throw out evidence, even if true and relevant, that has been gathered in an unconstitutional manner—lies the need to give practical force to protections such as that against self-incrimination.
Tribe does not insist that these particular facets are the only possible ways to shield the constitutional values in question. But he does maintain that there was nothing illegitimate about the Supreme Court employing the invisible Constitution, via Geodesic Construction, to give the visible one practical effect and meaning.
The nation, I think it’s safe to say, will not have the opportunity to hear Laurence Tribe explain his six “G”s as a nominee before the Judiciary Committee. Barack Obama seems like a pragmatist who will send up candidates for the court more likely to win broad approval. But I kind of wish the Democrats would call Tribe as an expert witness to talk about how we think about the Constitution, seen and unseen. We’d all learn a lot.
Paul M. Barrett ’83, J.D. ’87, an assistant managing editor at BusinessWeek,covered the Supreme Court for the Wall Street Journal from 1991 through 1996.
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