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The Invisible Constitution


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Table of Contents

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

About the Author

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.


"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

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