Lost in Space: Laurence Tribe's Invisible Constitution

Eric J. Segall[*]

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For over two hundred years, scholars, judges, and constitutional theorists have debated whether the American people possess fundamental rights and liberties beyond those derived from the explicit text of the United States Constitution.  As early as 1798, Justices Chase and Iredell differed over whether Supreme Court Justices should employ natural law principles to decide the cases before them.[1]  Almost one hundred years later, James Bradley Thayer argued for greater judicial deference to political institutions by suggesting that judges should invalidate decisions by the elected branches only when those decisions were clearly inconsistent with unambiguous constitutional text.[2]  In the 1960’s, Alexander Bickel wrote of the “counter-majoritarian difficulty,”[3] spawning hundreds of law review articles written by the legal academy’s most esteemed scholars trying to justify decisions such as Brown v. Board of Education, Baker v. Carr, and Roe v. Wade[4] against the charge that the rights protected in those cases could not be gleaned through constitutional text and history.[5]  And in 1975, Thomas Grey wrote his seminal article Do We Have an Unwritten Constitution?,[6] which helped spark a volume of responses on this question from eminent scholars on both the left and the right.[7]  Now, one of the most prominent constitutional lawyers of our generation and our chief legal doctrinalist, Laurence Tribe, has tried to contribute to this discourse with his book The Invisible Constitution.[8]  Given my inclination to agree with Professor Tribe’s politics, and in light of his substantial reputation as a teacher, scholar, and constitutional litigator, it would be wonderful to report that his new book adds to the considerable literature on this subject.  Unfortunately, The Invisible Constitution fails to advance the debate.