On Reading the Constitution

Our Constitution speaks in general terms of "liberty" and "property," of the "privileges and immunities" of citizens, and of the "equal protection of the laws"--open-ended phrases that seem to invite readers to reflect in them their own visions and agendas. Yet, recognizing that the Constitution cannot be merely what its interpreters wish it to be, this volume's authors draw on literary and mathematical analogies to explore how the fundamental charter of American government should be construed today.

Several premises are disturbing, for they point out a lack of Historical background of our founding. It suggests there are significant anomalies, for example if the Constitution gives the States a right to republican government and does not define republican government then a pliant construction and application of the text is suggested, this kind of logic is furthered in describing the general terms of the preamble as granting a broad license for inerpretation. The number of explanations offered by Madison on the subject of republican form of gvernment alone is sufficient to dispell the former, and with regard to the latter the topic was first adressed by Brutus, an Antifederlaist, and well responded to in Federalist Essay 41. As the Federalist Essays were a response to fears and criticisms of the then proposed Constitution, the ratification debates as well as the Federalist Essays does grant a significant view as to the consent of the governed 'On Reading the Constitution' seems to deny existed, or may presently exist.

The authors proceed to draw from confusions in the 'conservative' camp regarding constitutional specificity to further their point, quoting Rhenquist from a Texas Law Review article 1976, 'The framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the increasingly changing environment..' Alas poor Madison's efforts in describing the exertions of perspicuity found in federalist 37, having missed the attention of liberals as well as conservatives, has opened the door to a pliant construction of the Constitution. We were also cautioned by Madison to be wary of the changes of the meaning of words over time, Adams once described a church service as 'awful' he meant full of awe, this example is not solitary, and it's impact has not been fully examined.

I hold no doubt both Michael Dorf, and Laurence Tribe are concerned and virtuous citizens, as well as skilled and erudite practioners of Law, yet the book allows little insight into Constitutional Exegesis. Lincoln warned at Cooper Union to never supplant the logic of the fathers when we realize they understood the question better than we, it is time we examine what they knew, instead of focusing on the confusion that might exist.

It seemed to me that this book did little more than offer up a series of comparisons between law and the Constitution and other disciplines like literature and mathematics. While that may serve a useful purpose, it is of little value for those attempting to find a workable liberal theory through which to interpret the Constitution. And repeatedly throughout this book Tribe and Dorf explicity state that they do not have such a theory, or at least refuse to claim that their ideas are in any way paramount or final.

Nonetheless, it does offer up seveal solid critiques of conservative interpretations of the Constitution which might come in handy, or at least serve as a starting point for further investigation. I would also recommed that one read Antonin Scalia's "A Matter of Interpretation," which contains a rebuttal by Laurence Tribe similar to the arguments found here, but also has a very solidly philosophical criticism of Scalia's "textualist" theory by Ronald Dworkin.

Finally, and this has little to do with this book and more to do with jwhoeme's review below - jwhoeme seems to think that Tribe's chapter or arguments on how NOT to read the Constitution somehow presuppose that he knows how to read it, and I feel that that is a rather poor assumption on the part of jwhoeme. Just because one says they know how NOT to do something doesn't me they know how to do it. I know that bashing someone in the head with a rock is not how one performs brain surgery, but that doesn't mean I have any idea how to do it properly.