When the sun rose on Nov. 5, 2008, it looked like the end of conservative America. Basic conservative principles—free markets, deregulation, small government—had taken a beating in the weeks before. But with the rout of GOP candidates on Election Day, it looked as if liberalism was the last man standing. That is, of course, unless you were standing in the courtroom of the Supreme Court on Nov. 5, 2008, when yet another day of oral argument revealed that all of the power, momentum, and energy at the high court is still held by its conservative wing.
It's not just about numbers, although it's indisputable that with the appointments in 2005 of Chief Justice John Roberts and Associate Justice Samuel Alito, the number of strongly ideological judicial conservatives at the high court rose to four. And it's not just about demographics, although the average age of the court's conservatives is markedly younger than the average age of its liberals. It's about something almost undefinable that has changed on the bench in the past two years: a sense that Alito and Roberts and Justice Antonin Scalia have formed a most enthusiastic, collegial constitutional beach volleyball team that revels in setting one another up, spiking as hard as they can, and clapping one another on the back after each point. The court's liberal wing, in contrast, often appears to spend oral argument engaging in four sedate, side-by-side games of computer solitaire.
But at the most granular level, the momentum shift at the high court has less to do with the current lineup of justices than with constitutional theory. Last spring's Heller decision, for instance, overturning the District of Columbia's gun ban on Second Amendment grounds, revealed the absolute dominance of conservative interpretive theories at the high court. The liberals and conservatives took turns trying to outdo one another as "textualists" and "originalists" and "strict constructionists," leading more than one commentator to enthuse that regardless of the outcome, after Heller, "we are all originalists now."
Well, maybe. Certainly, while the sun may have set on some conservative political theory, it's been decades since the sun of conservative constitutional theory shone so brightly at the Supreme Court. Liberals today mostly only whisper the words "living Constitution," for fear of being taunted by their Federalist Society friends for advocating the "sweet mystery of life" and "penumbras" and other feel-good '60s notions about a Constitution so vast and unchecked and benevolent that it might just as well be called "Mom."
Enter Harvard Law School's Laurence Tribe, one of the undisputed lions of liberal academia. A few years ago, Tribe stunned legal academia when he announced that he would not be updating his legendary constitutional-law treatise because, as he said at the time, "conflict over basic constitutional premises is today at a fever pitch." In his view, "no treatise, in my sense of that term, can be true to this moment in our constitutional history." Everybody waited for him to change his mind. He didn't.
Instead, this fall saw the publication of The Invisible Constitution, Tribe's effort to explain to ordinary Americans that when it comes to this cherished founding document, what we see is much less than what we get. This book is a kick in the shin to "textualism" and "originalism," in that Tribe begins from the principle that the written, or "visible," Constitution so revered by conservative jurists is, in fact, only a small part of what Americans think of as the Constitution. He notes that the text of the Constitution contains words that are not even constitutional—original language that has been amended but that still appears in the document. He points out that some of our most cherished constitutional convictions, such as "one person, one vote," appear nowhere in the text. In other words, by fetishizing the words alone, we lose sight of the enormity of what the document does.
Tribe's argument is not so much an argument for a living Constitution that morphs and adapts to meet the needs of a changing society. He's more interested in the shadow Constitution—what he calls the "dark matter" that represents the "ocean of ideas, propositions, recovered memories, and imagined experiences" of which the visible Constitution is only a small part. You cannot spend five minutes listening to oral arguments without realizing that most discussion of what is "constitutional" transcends the mere words in the document. And that is the ground he seeks to excavate. One of his examples, the proposition that no state may secede from the Union, he describes as a part of the Constitution that is written "not in ink but in blood."
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