As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.

In The Invisible Constitution, Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.

Remarkably original, keenly perceptive, and written with Tribe's trademark analytical flair, this latest volume in Oxford's Inalienable Rights series offers a new way of understanding many of the central constitutional debates of our time.

"A number of sharp and provocative ideas... While many law-review articles have covered the same territory, Tribe lends a unique breadth of knowledge... this stands as one of the most learned and widest-ranging studies of the limitations involved in rendering legal judgment solely on the basis of the Constitution's text."--Book Forum

"His original views here are carefully distinguished from the ideas of an 'unwritten Constitution.' His provocative analysis and arguments will challenge readers' understanding of constitutional provisions. Strongly recommended for all academic libraries."--Library Journal

"Only a grand master like Laurence Tribe could write this masterpiece. Constitutional interpretation, the understanding of the role of a constitution in a nation's life, and the relationship between constitutional text and context will never be the same as they were before this powerful, inspiring, and original book was written."--Aharon Barak, Chief Justice of Israel (1995-2006)

"From our country's most renowned scholar of constitutional law comes a book so breathtaking in its originality and wide-ranging in its scope that it will become an instant classic. To read The Invisible Constitution is to enter the mind of a brilliant thinker as he reflects upon many of the most important issues of the day."--Doris Kearns Goodwin, author of Team of Rivals: The Political Genius of Abraham Lincoln

"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 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."--Slate

"Laurence Tribe offers us a wonderfully far-reaching and mind-bending seminar on what lies beneath, beyond, before, betwixt and between the ink marks of the parchment Constitution and its amendatory postscripts."--Akhil Amar, author of America's Constitution: A Biography

"One of America's leading constitutional experts has delivered a thought-provoking volume that illuminates the complexities of the country's most important document."--U.S. Senator Dianne Feinstein

"Laurence Tribe yet again delivers the goods: this is a thought-provoking examination of some of the most critical constitutional questions of our times. Eminently readable, The Invisible Constitution will give rise to many an important debate--and, perhaps, help put an end to one or two as well."--Nina Totenberg, National Public Radio

"This lucid, deeply engaging book is truly mind-expanding, looking beyond the text of the document for a completely new framework for understanding the Constitution and its interpretation."--Scott Turow, author of Presumed Innocent and Ultimate Punishment

Renowned legal scholar Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version, in the latest volume in Oxford's Inalienable Rights series.

Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard University. He has published more than 100 books and articles, including American Constitutional Law, On Reading the Constitution, and Abortion: The Clash of Absolutes. In addition, he has argued more than three dozen cases before the Supreme Court of the United States and has frequently testified before Congress on a broad range of constitutional issues.

Editor's Note

Preface

Acknowledgements

Part I: Beyond the Visible

Identifying "The Constitution"

Distinguishing "The Constitution" From "Constitutional Law"

Remembering Ours is a "Written" Constitution

The Variable Role of Interpretive Judicial Precedent

The "Dark Matter"

Part II: Defining the Terrain

Invisibility Defined

Not Necessarily an Ideal Constitution

Constitutional Axioms and Constitutional Theorems

The Politics of Constitutional Invisibility

This Book's Mission: Making Invisibility Visible

Supreme Law, Not the Supreme Court

The Constitution's Architecture, Not its "Construction"

Part III: Explorations Beyond the Text

Invisibility Exemplified: The Moving Finger Writes

Cleo's Claims

Doubling Back: The Holistic Reading Rule

Two Types of Extratextual Norms

Invisibility Illuminated: A Government of Laws

Invisibility Elaborated: Government of the People, By the People, For the People

Invisibility Further Illustrated: Suspending Habeas Corpus

Federalism - and "the Right of the People to Keep and Bear Arms"

States as Sovereigns?

Part IV: The Content of Liberty and Equality and the Boundaries of Government Power

The "Substantive Due Process" Conundrum

The Jagged Road to Equality

The Reapportionment Revolution

Lochner and Selective "Incorporation"

From Liberty of Contract to Forms of Self-Government

Intimate Association and Private Self-Government

The Maintenance of Boundaries: From Territoriality to Privacy

Part V: Visualizing the Invisible

Once Again: The Ninth Amendment's Rule of Construction

The Inescapable Role of Constitutional "Dark Matter"

The Analogy to Godel's Incompleteness Theorem

Organizing the Constitution's "Dark Matter"

Illustrations following page 156

1. Geometric Construction

2. Geodesic Construction

3. Global Construction

4. Geological Construction

5. Gravitational Construction

6. Gyroscopic Construction

Geometric Construction

Time's Geometry

A Libertarian Presumption

Lochner's Legacy Revisited

Geodesic Construction

Global Construction

Geological Construction

Gravitational Construction

Gyroscopic Construction

Coda: Concluding Observations

Sources

The Visible Constitution: Its Text and Accompanying Resolutions

The Declaration of Independence

Index