This essay discusses the book by Laurence Tribe, and his suggestions for reading and interpreting the Constitution of the United States.
The Constitution of the United States is a document that has proven to be difficult to interpret; or rather, there are so many interpretations possible that it is not unusual for people holding completely different opinions to use the Constitution to justify their opposing views. It is precise because court decisions, particularly those of the U.S. Supreme Court, are based upon Constitutional law that it is desirable, even necessary, to understand how to read the Constitution. That is the purpose of this book.
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The authors are careful to warn readers that they, like other Constitutional scholars, have not been granted some sort of magical “key” that will give them the one and only true interpretation of this document. They remind readers that there is no such thing as a “blueprint” of the Constitution; what they offer is a “framework” to help put it in perspective.
They begin by discussing how not to read the Constitution. The author believes that people who try to interpret the Constitution are likely to fall into one of two main fallacies. Either they use the “dis-integration” method, or they turn to the “hyper-integration” method. Neither one is a sound tool for Constitutional study.
“Dis-integration” is the practice of “…approaching the Constitution in ways that ignore the salient fact that its parts are linked into a whole—that it is a Constitution, and not merely an unconnected bunch of separate clauses and provisions with separate histories, that must be interpreted.” (Tribe, p. 20). As an example of the problems with this method, Tribe discusses Chief Justice Berger’s interpretation of the Fifth Amendment as justification for the use of capital punishment. The Fifth Amendment says that no one can be deprived of “life, liberty or property, without due process of law.” This would suggest to some that it is perfectly legal to deprive someone of life, provided that it is done with due process of law.
This is a narrow interpretation of one amendment, and it stands only so long as we continue to view that single amendment without reference to any of the others. But it’s impossible to do so, for the Eighth Amendment comes into play as well, and it specifically prohibits “cruel and unusual punishment.” In 1791, Tribe says, death might not have been considered either cruel or unusual, but time and sensibilities change, and we are not so ready to embrace the destruction of others as our forefathers apparently were. When the Fifth and Eighth Amendments are considered together, they directly contradict one another. Thus, Tribe says, approaching the Constitution to “cherry-pick” it, with the idea of using only those ideas that best support the current case, is a flawed method of reading the document.
No less flawed is the opposite fallacy: that the Constitution is a seamless whole that speaks to all of us with a single, clear, unmistakable voice. That idea fails immediately if we consider that many parts of the Constitution were written to support and enhance the institution of slavery, an institution that is in direct conflict with many of the ideals found elsewhere in the same document. (Tribe, p. 24). The Constitution is not seamless, smooth and consistent; it is riddled with contradictions and opposing viewpoints. But that is not necessarily a bad thing, because its very inconsistency and complexity are evidence of the fact that the Constitution is constantly evolving to meet the needs of the times.
Reading the document is to look at a historical progression of events in America, as well as the changing face of American society. And so, this amorphousness “… is not a sad reality; it may well be among the Constitution’s greatest strengths.” (Tribe, p. 25).
With these observations of how not to read the document as a foundation, Tribe then goes on to consider how to read it. He hopes, he says, to establish a “useful dialogue on reading the Constitution.” (P. 31).
He suggests that we first look at our history, which, over time, shows us that the decisions based on the Constitution have largely steered a middle course that has been beneficial—although sometimes the decisions lurch from one extreme to the other, in general, the outcome has been sound, resulting in policies that benefit the population. (Tribe, pp. 31-33). In other words, clumsy and vague as it sometimes is, the Constitution works.
He then devotes the rest of the book to an examination of various important—even precedent-setting—cases and shows how the Justices interpreted the Constitution in reaching their decisions. These are the matters that have shaped national law; i.e., Roe v. Wade. He also discusses the part that a judge’s individual values plays in his or her decisions. Of course, the Justices try to remain impartial, but they are also human, and so they sometimes exhibit bias. But, Tribe is careful to point out, they have more often than not succeeded in retaining their impartiality and rendered a decision that is faithful to the spirit of the law. (One such example can be found in the fact that the Court has consistently ruled that the First Amendment protects burning the American flag in protest—even though it greatly annoys the conservative Justices to take this position.)
Tribe also suggests that we can use some of the same principles we apply to analyze literature and mathematics to our analysis of the Constitution, and ends his book with final, detailed consideration of the ways in which a reading of the Constitution can (possibly) reduce generalities to specifics. In the end, Tribe’s book, which is a well-thought-out and dense work, not only provides some workable guidelines for reading the Constitution; it proves once again how very complex this document is.
Tribe, Laurence H. and Michael C. Dorf. On Reading the Constitution. Cambridge, MA: Harvard U. Press, 1991.
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