I cannot provide a useful excerpt of this. The opening appears below. Please read it in full.
“No Exit: Laurence Tribe and ‘The Invisible Constitution’“
By Daniel Lazare, The Nation, 20 October 2008
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.
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.
About the author
Daniel Lazare is the author of, most recently, The Velvet Coup: The Constitution, the Supreme Court, and the Decline of American Democracy (Verso).He is currently at work on a book about the politics of Christianity, Judaism and Islam for Pantheon.
Click here to see his articles in The Nation.
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Posts on the FM site about the Constitution and our government
- Forecast: Death of the American Constitution, 4 July 2006
- The Constitution: wonderful, if we can keep it, 15 February 2008
- Congress shows us how our new government works, 14 April 2008
- See the last glimmers of the Constitution’s life…, 27 June 2008
- Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
- Another step away from our Constitutional system, with applause, 19 September 2008
- What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
- “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
- Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
- Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
Afterword
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