BY ANDREW KALLOCH
Carl M. Loeb University Professor Laurence Tribe ’66’s new book, The Invisible Constitution, was the subject of the Harvard Law Review’s annual Spring Forum on Wednesday, April 15. Befitting of Tribe’s stature as one of the great constitutional scholars of his time, the Law Review amassed a venerable panel. Professor Kathleen Sullivan ’81 of Stanford Law School and Professor Akhil Reed Amar of Yale Law School, who is a Visiting Professor at HLS this term, led the discussion of Tribe’s work. Harvard Law Professor Martha Minow moderated the panel.
Tribe, flanked by colorful three-dimensional drawings symbolizing the many pressures imposed on the Constitutional framework of the United States, told the crowd that the fascinating aspect of the American Constitution is not the text, but that which has been left unwritten. Analogizing constitutional law to art, architecture and music, Tribe remarked, “The whole point is that the negative space is an integral part of the picture…negative spaces…have been at the heart of my thinking all along.”
Amar lauded Tribe’s invisibility thesis, stating that the Constitution “doesn’t contain a set of instructions as to how to interpret it, and that even if it did, we’d need a set of instructions as to how to interpret the first set.”
Sullivan appreciated Tribe’s insistence about being intra-constitutional both as to the visible and invisible forms. In other words, Tribe’s latest work is not about interpreting the Constitution to match the external functions that the Constitution can serve, such as democracy, efficiency, and social welfare.
Sullivan also described Tribe’s work as having three fundamental themes. First, Tribe understands constitutional problems in three dimensions, meaning that he seeks not to “flatten” constitutional rights, but instead to explore their meaning as set of relationships or opportunities to create relationships.
Second, Tribe puts forth a tacit structural postulates theme, which states that there is an “invisible force that holds up the law and enables it to do those things it could not do on its own.” Sullivan noted that Tribe is an “equal opportunity tacit structural postulate thinker” (not liberal/conservativeà not about end, but process of thought/analysis).
Third, Sullivan stated that Tribe’s vision of constitutional rights is similar to the Möbius Strip. “To see a right in its proper form is not to decide whether it involves liberty or equality but to see whether it could involve both,” the former Dean of SLS noted.