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."
Tribe wants, as he says, to "shift the discussion from whether various constitutional claims are properly rooted within the Constitution's written text to whether claims made in its name rightly describe the content, both written and unwritten, of our fundamental law." His movement away from close-reading the text of the Constitution comes just as some progressive scholars have come to embrace it. But like those progressive scholars, Tribe seeks to distance himself from what conservatives decry as the flabby, results-based decision-making that is parodied by justices like Antonin Scalia as empty lyricism. Scalia's brutal attack on what he dubbed "the sweet mystery of life" passage found in Planned Parenthood v. Casey reveals what happens when constitutional courts wax Shakespearian. That opinion features the famous phrase: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." It's legal language that has launched a thousand snorts.
Tribe, with his background in math and science, is determinedly more earthbound. This is a book about "excavation" and "dark energy" and "double helixes." Tribe is focused not on penumbras in the air, but on the invisible physical matter that connects the words of the Constitution to the constitutional world, the stuff that binds "life" to "liberty" to "property."
Here is an example of how it works: The 14th Amendment provides that no state shall "deprive any person of life, liberty or property, without due process of law." Looking only at the text, says Tribe, one might suppose that the state could punish someone for constitutionally protected free speech so long as it afforded her with the "due process" of a full and fair trial in which to defend herself. This defies common sense, however. And that is why the courts have read due process to include substantive freedom and not just procedural protections. And the substance of what is being protected comprises a part of the "Constitution's invisible dark matter."
In its most whimsical section, the book includes Tribe's hand-drawn renderings of what he describes as six "modes of construction" of the invisible Constitution, including the "geodesic," the "gravitational," and the "gyroscopic." Each of the six models represents either an effort to connect the dots between the visible elements of the Constitution or to explain how the Constitution would collapse upon itself if the invisible portions were not there. Whether this act of pressing the hard sciences into service as models for imagining the Constitution's "dark matter" strikes you as clarifying or obfuscating, what Tribe is attempting here is to impose muscularity, rationality, and structure on progressive constitutional thought. A term like "due process of law" needs to be both unpacked and constrained at the same time, and this is Tribe's project.
Tribe turned his attention away from his landmark treatise in part because while constitutional law is changing at lightning speed, the Constitution is not so much changing as slowly taking form. Indeed, he concludes with an observation nicked from a friend's fortune cookie: "Everything that we see is a shadow cast by that which we do not see." Tribe believes that the modern view of the Constitution, with its protections of personal dignity and equality, are the shadows cast by a much richer, more nuanced document than the text itself would suggest. There are problems with this notion, to be sure, not the least of them being the question of who sees an invisible Constitution, and how justices ready to kill one another over the visible text will ever reach agreement about an unseen one.
In the coming months or years, President-elect Barack Obama will probably name a prominent liberal thinker or two to fill a seat at the Supreme Court. That nominee will be confirmed in an intellectual climate that currently begins and ends in the rigid constraints of textualism and originalism. With The Invisible Constitution,Laurence Tribe asks his readers to dream bigger than that. Not in the interest of promoting any one ideological agenda, although Tribe's progressive preferences are hardly hidden. Instead, he offers a blueprint for reimagining the national constitutional conversation with fuller information about its complexities and internal tensions. He asks us to take the time to figure out what the founding document does rather than nitpicking about what it says. And if ever there were a moment in which liberal thinkers might allow themselves to dream big, this should be it.