Legal Commentary

If you're between exams -- or between grading exams -- and looking for some light reading, here's something: a short review of Laurence Tribe's new book The Invisible Constitution.  It's under four pages, so it's hardly exhaustive, but you might enjoy reading it as a break from other work.  Here's the abstract:

This is a brief review of Laurence H. Tribe's new book The Invisible Constitution, which is forthcoming in the Federalist Society's journal Engage. In this book, Tribe argues that the Constitution necessarily is composed not only of textual commands, but also of constitutional "dark matter" -- principles and postulates that do not appear in the text but that have every bit as much weight, and are every bit as much part of the Constitution, as the text itself.



I argue that Tribe's argument for the invisible Constitution is not simply a dig at textualism or originalism, all but the most wooden forms of which allow for some version of the invisible Constitution. Tribe's argument is mostly a careful and convincing one. But readers will rightly quarrel both with some of the specifics of Tribe's version of the invisible Constitution, and with his broader failure to explain why we should not accept only the most parsimonious version of an extratextual Constitution. Moreover, the most novel contribution of this book -- its description of six "modes" of finding and interpreting the invisible Constitution -- is not yet fully developed and is not especially persuasive as it currently stands. That said, Tribe's book is engaging at its best and may provoke useful discussion about the nature and boundaries of the Constitution. 

Enjoy.  Comments are welcome, as always.