Doug Chayka
What does the Constitution mean? This is not a trick question. Yes, the document opens with a stirring Preamble about “We the People” establishing justice and ensuring domestic tranquillity, and when people rally round the Constitution to defend it from the “sappers and miners,” in Jefferson’s famous phrase, who are forever plotting to take it away (like the Bush Administration Justice Department), the Preamble is their platform. But it is no help in understanding the meaning of the Constitution, because it is not the law in the eyes of the judiciary. The Preamble is merely a warm-up to the law, which is why it is so rarely cited in judicial opinions.
There’s also the celebrated Bill of Rights, but it is less help than most people realize, too. Although it’s an article of faith that the First Amendment protects free speech, free assembly and a free press, in fact it does none of these things. It merely precludes Congress from interfering with them, a limitation on federal power that was long taken as an invitation to the states to interfere to their hearts’ content. The Second Amendment, dealing with the right to bear arms, is a premodern relic, while the Third, prohibiting the peacetime quartering of soldiers, has been irrelevant since the days of the Boston Tea Party. The Fourth Amendment, which protects against “unreasonable searches and seizures,” would be nice if it protected against the eavesdroppers at the National Security Agency. But that is no longer the case. The Fourth Amendment is also of little use nowadays in the event the authorities suspect you of exchanging money for sex, visiting certain forbidden websites or stashing an unauthorized herbal product in your cupboard.
Equally perplexing is the smattering of articles between the Preamble and the Bill of Rights, describing the powers of the three branches of the federal government and the states with regard to letters of marque and reprisal, runaway slaves and various other issues. There is Article V, the amending clause, which allows minorities of less than 5 percent to prevent the people from changing so much as a comma in a document created in their name. There is Article VI, establishing the Constitution as “the supreme Law of the Land,” meaning that no other law can knock it off its perch. And, finally, there is Article VII, declaring that the Constitution would be considered ratified when approved by nine states, which is odd, since the Articles of Confederation, still in effect at the time, stipulated that no constitutional change was permissible unless approved by all thirteen. One supreme law of the land had just toppled another, which suggests that a third, even more supreme, might still be waiting in the wings.
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How could this 221-year-old hodgepodge add up to a charter of liberty, especially considering the ease with which liberty has been subverted in recent years without so much as a word of the Constitution being changed? In The Invisible Constitution, Laurence Tribe, the celebrated Harvard professor of constitutional law, tries to address these difficulties by describing the subject of his book’s title–an invisible web of supplementary ideas that over the centuries have grown around a written Constitution riddled with “conflicts, gaps, or inconsistencies.” Just as a footprint tells us something about the animal that made it, the network of ideas and long-term political principles that make up the invisible Constitution tells us something about the written document as well–its impact on history, the way it has been understood, the expectations it has fostered.
This may seem like a roundabout approach, but Tribe argues that it is necessary because no text can be fully self-explanatory. Not only can a text be contradictory to begin with but words change their meaning over the years, which makes an “intertemporal collage” like the Constitution, one that has been amended as many as twenty-seven times (depending on how you count), an especially tough nut to crack. How are we to figure out how it all fits together–how, for example, the Fifteenth Amendment, which declares that voting rights shall not be abridged “on account of race, color, or previous condition of servitude,” affects our understanding of the Fourteenth, which makes no mention of color or race; or how the Fourteenth Amendment, which says that the states must not deny citizens “equal protection of the laws,” affects our understanding of the Bill of Rights, which lays out some of the equal protections to which citizens may be entitled? It would be marvelous if the Constitution came equipped with a key showing precisely how each new provision affects the preceding ones. But even if it did, we would all fall to arguing over what the key means and how to interpret it and would end up back where we started.
So we are left with a text that is inexplicable in its own right and therefore can be understood only in some larger context. Since, as Tribe puts it, “the Constitution at every moment depends on extratextual sources of meaning,” we must look to history and the surrounding political culture for illumination. What the text says is important, but so is what the people think it says and what they want it to say.
To understand Tribe’s approach, consider the question of whether the South had a constitutional right to secede in 1861. An entire nation hung in the balance, which is why Lincoln strove mightily in his first inaugural address to build a constitutional case against secession. But the results were less than overwhelming, and nearly a century and a half later Tribe writes that the antisecessionist argument is still “invisible to the reader of the bare text.” Since the Constitution was silent as to whether the Confederacy should stay or go, can any state that currently has a beef with the federal government secede as well? No, says Tribe, because hundreds of thousands of Union soldiers gave their lives in the cause of national unity. The result is a constitutional provision “written in blood rather than ink,” one that changes the way we read the document even if it doesn’t change a word in the text.
Or consider the Fourteenth Amendment, which the ex-Confederate states were required to adopt as a condition for their readmission to the Union. Since forcing states to approve a constitutional amendment makes a mockery of the amending clause set forth in Article V, does that mean the Fourteenth Amendment is invalid? Once again, says Tribe, the written text is silent. But the invisible Constitution makes it clear that, however irregular the procedure, the nation as a whole imposed it in such a way as to leave no doubt about its permanence. The amendment is valid because the invisible Constitution says it is.
Finally, there is the question of whether the Supreme Court is the final arbiter of all things constitutional, something Americans have been arguing about since the days of John Marshall. In December 2000, when he represented Al Gore before the Supreme Court in Bush v. Gore, Tribe’s position seemed plain enough. When the Court handed down its infamous decision putting an end to the Florida vote count and installing George W. Bush in the White House, Tribe declared, apparently without first consulting his client, “I’m sure that Vice President Gore has the kind of reverence for the Supreme Court as an institution that he will really not undertake to be less than complete and gracious in his acceptance of this result.” The Supreme Court was thus the final authority. But having considered the problem a bit, Tribe writes in The Invisible Constitution that, “after two centuries of controversy, it’s still up for grabs just how ‘final’ the answers given by the justices really are and ought to be.” Nothing has changed as far as the text is concerned. But after eight years of the worst presidency since James Buchanan, the perceptions surrounding it have changed to the point that a settled principle has now been reopened, at least in Tribe’s view.
It’s the same Constitution, except that it no longer means the same thing. As Tribe observes,
The visible Constitution 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. And what we glimpse–what we come to comprehend and remake in our own time’s image–nurtures the living body of governing law, something more vibrant than an inert blueprint for a possible system of government or a set of political exhortations about a conceivable structure for governance constrained by a potential set of rights and privileges.
That swirling sea of assumptions and experiences includes not only the array of “higher law” or “natural law” ideas that many of the Constitution’s framers took for granted but also the lessons drawn from thinking about the Constitution and its presuppositions and from the history of struggle to make it real.
Rather than a straightforward statement of what the government may or may not do, the Constitution should be seen as part of an extended conversation with history, the people and the global community. To understand what’s being said, you can’t listen to one party alone but instead must pay attention to the entire colloquy.
Tribe’s ideas appear to coincide with the notion of a “living Constitution,” which has been an article of liberal faith since at least the 1930s. This is the concept that the Constitution is not the dead hand of the past holding the people back but an instrument of democratic self-government enabling them to stride forward in full confidence to meet the problems of the day. If so, then the invisible Constitution is the Holy Spirit, so to speak, that gives the written Constitution the breath of life.
It’s a comforting thought, certainly. But there is a problem here–in fact, a slew of them. One has to do with the very idea of an invisible Constitution: since it is invisible, no one can be certain of what it contains. Peering closely, Tribe claims to discern the outlines of a plank favoring the rule of law and another in support of government of, by and for the people (which is strange, since the two ideas are very different). But John Yoo, the University of California, Berkeley, law professor who wrote the notorious Justice Department “torture memos,” might just as easily see a plank allowing the government to employ “enhanced interrogation techniques” to protect its citizens. So who’s to say who is right?
Another problem relates to the sheer murkiness of the concept. Remarkably, Tribe never makes it clear whether the invisible Constitution is something that actually exists, a useful thought experiment or simply an elaborate literary conceit. It’s not even clear whether Tribe is sure. Yet another problem has to do with the related issue of transparency, the modern democratic principle that if citizens are to participate in their government, they should at least be able to see how it works. But Tribe’s concept of an invisible Constitution assumes the opposite: the Constitution is indecipherable and hence opaque, and only those deeply versed in constitutional history can begin to make sense of it. Instead of government of, by and for the people, this is government of, by and for a mandarin elite.
Finally, and most fundamentally, there is the question of whether the kind of high-level constitutional interpretation undertaken in The Invisible Constitution is itself coercive. Throughout his book, Tribe shows a consistent tendency to confuse the factual and the normative, to ignore the difference between “is” and “ought.” Listing some of the burning issues of the day–“Can you lose your job with the city government for advocating the decriminalization of marijuana? Can you be prosecuted for having oral sex at home with your girlfriend or boyfriend?”–he declares, “We all look to the Constitution for the answers to such questions.” But do we look to the Constitution, or should we? The Constitution, he adds, “is about as final at any given point in our history as anything in our country ever gets.” But once again, is it final, or should it be? Considering the document’s central role in our lives, “everyone should be concerned not just with the latest judicial rulings about the Constitution’s meaning but with the Constitution itself.” Perhaps, but what Tribe doesn’t address in this statement is why we should be concerned. Is it because “the supreme law of the land” says so? If so, are we in violation if we are supremely indifferent?
This is not mere nit-picking. Obliterating the distinction between “is” and “ought” is a standard conservative technique, the purpose of which is to stifle the thought that existing institutions might change. The way things are is the way they ought to be, and anyone who says otherwise is foolish and impractical. Since existing institutions are static and immovable, the Constitution, the biggest such institution in its class, must be the most unyielding of all. All we can do is adapt ourselves to its vagaries.
Tribe’s proposition that the Constitution is indecipherable on its own is a remarkable confession for one of the country’s most prominent constitutional scholars–and certainly its most prominent liberal constitutional scholar–to make. It suggests that a crisis of faith is under way at the highest levels of the legal academy, which is all to the good. But it never occurs to Tribe that the appropriate response to an indecipherable Constitution is not to mystify it further but simply to fix it. After all, if an editor cannot understand a particularly convoluted bit of prose, he will ask the author to revise it. If the people cannot understand an “intertemporal collage” filled with “conflicts, gaps, or inconsistencies,” they should order a rewrite as well. The fact that such a step is never contemplated in public shows the stillborn nature of popular sovereignty. The people still have a role to play in the constitutional process, but in charge they are not.
If the people are not in charge, it’s unclear who is. Tribe’s statement about a “visible Constitution necessarily float[ing] in a vast and deep…ocean of ideas” deserves closer scrutiny in this regard. In essence, what this patch of ornate prose describes is a feedback loop in which “the Constitution as a whole puts us in a position to glimpse” certain “ideas, propositions, recovered memories, and imagined experiences” that are then used to nurture “the living body of governing law” as part of a “struggle to make it real.” Rather than glimpsing ideas and propositions under our own power, in other words, we see only those that the Constitution wants us to see. We do so not to improve our lot but to enable a “living body of governing law” (which is to say the Constitution) to improve its lot by becoming more “real.” Whereas the Preamble describes the Constitution as an instrument the people use to establish justice and ensure domestic tranquillity, Tribe describes the people as an instrument that the Constitution uses for its own self-aggrandizement.
Not that he necessarily sees anything troubling in this situation. Quoting Roscoe Pound (an associate of Felix Frankfurter) to the effect that “civilization involves subjection of force to reason, and the agency of this subjection is law,” Tribe plainly sees law as encapsulating the highest aspirations of the people. The rule of law is thus the rule of reason, and a society is civilized exactly to the degree that it is law-abiding. But this makes sense only if the law is reasonable and civilized. If it’s not, then the rule of law becomes just as absurd as any other form of tyranny and just as destructive to society. Indeed, there is no better proof of this principle than the Constitution, which grows longer and more impenetrable the more the democracy beneath it disintegrates.
Two recent incidents show what can happen when law escapes the control of the governed. The Invisible Constitution discusses the first–the ratification of the Twenty-seventh Amendment in 1992–in some detail because it represents the sort of constitutional conundrum that law professors love. The amendment consists of just twenty-four words: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” In other words, while members of Congress can vote themselves a raise, they must face the voters in the next election before it goes into effect.
Since nothing in the amendment has stopped members of Congress from receiving their annual COLA increase, it would seem to be a harmless bit of populist puffery. Nonetheless, its ratification process should have set alarm bells ringing. The reason is that the amendment was written more than two centuries earlier by none other than James Madison as part of the original Bill of Rights. But after clearing a two-thirds vote in each house, it failed to win the support of three-fourths of the states and disappeared from view. It resurfaced in 1873 when the Ohio State Legislature ratified it out of the blue, and vanished again. But in the early 1980s, an eager student in Texas named Gregory Watson came across it while researching a college paper and began sending out letters to the various state capitals. The amendment struck a chord with right-wingers seeking to hamstring the legislative branch, and state ratification votes slowly began to accumulate–Maine in 1983, Colorado in 1984 and so on. Finally, Michigan put it over the edge in 1992 by becoming the thirty-eighth state to ratify it.
The process was grossly unrepresentative. Because Michigan had a population at the time of just 9.3 million, fewer than one American in twenty-five had an opportunity to vote via his or her state representatives on what, for all intents and purposes, was to become an indelible part of the Constitution. Even if we include four other states that voted during the previous twenty-four months–Florida, North Dakota, Missouri and Alabama–it still means that fewer than one person in seven had a chance to deliberate, however indirectly, in a reasonably timely fashion.
Votes across a span of two centuries were lumped together as if they had all taken place in a single day. Instead of deliberating together, Americans deliberated apart in entirely different historical epochs. Yet rather than asking where this nonsensical process was leading, the House and Senate bowed to the inevitable and voted to accept the ratification by votes of 414-3 and 99-0, respectively. What’s the use of arguing when the law is in control? Although Tribe states in The Invisible Constitution that the legal professoriat continues to debate the validity of the Twenty-seventh Amendment, he adds that “nothing in the text of the Constitution tells us which of our views is the correct one.” Until the Constitution tells us, we will never know.
The second recent instance of constitutional breakdown is the ruling in Bush v. Gore. Although Tribe subsequently described the ruling as “indefensible” and “not just wrong but unbearably so,” his statement at the time that Gore should “not undertake to be less than complete and gracious in his acceptance of this result” represented surrender to the judiciary of the most humiliating sort. Indeed, what made Tribe’s deference to the Court even more abject is that the Twelfth Amendment provides a clear alternative: in the event that neither presidential candidate emerges with a clear majority in the Electoral College, “the House of Representatives shall choose immediately, by ballot, the President.” This process was made famous by Michael Moore’s Fahrenheit 9/11, with its opening shots of black Congressmen rising one by one to call for the rejection of the Florida results, only to be gaveled down by Al Gore, the object of their solicitude, in his final days as Senate president. Rather than gird for war, which is what rejecting the Florida results and throwing the election into the House would have meant, Tribe and his client preferred to let the Supremes go unchallenged.
They thus carved out a position for themselves that was more constitutional than the Constitution. Democracy was rebuked, but the rule of law was rendered more inviolate than ever. Clearly, Tribe is onto something with his concept of an invisible Constitution that shapes how the written document is read and understood. But he is wrong about its purpose. Its true purpose is to ensure that an intractable, undemocratic Constitution is perceived as a charter of liberty. The goal of the invisible Constitution is to render the visible Constitution, in all its premodern glory, invisible as well.
