Vol. 1, No. 1 (March, 1991), pp. 13-15

ON READING THE CONSTITUTION by Laurence H. Tribe and Michael C. Dorf. Cambridge: Harvard University Press, 1991. $18.95.

Reviewed by Richard A. Brisbin, Jr., West Virginia University.

For the past decade many scholars of the Constitution have debated how to read its text. Particularly they have deliberated how to solve concrete political and social conflicts given the vague remonstrances of the document. In this brief work fashioned from previously published articles, Laurence Tribe, one of the nation's most visible constitutional lawyers, and his former student, Michael Dorf, set forth their position on the issue of textual interpretation. Although Tribe presented aspects of an approach to textual interpretation in earlier essays, available as the first four chapters of his Constitutional Choices (1985), readers will find the Tribe and Dorf volume offers a more complete consideration of the problem of textual interpretation.

The heart of the authors' argument is found in their second chapter. Here they propose consideration of the constitutional text through a process of "constitutional conversation." A constitutional conversation is the reasoned expression of various potential interpretive choices with "channels" established by the constitutional text. The authors are a bit imprecise in defining the channels for reading the text. Using textual and case examples, they infer four very general "lessons" to guide constitutional conversations (p. 45). Also, they suggest that plausible historical and extra- constitutional materials will facilitate the resolution of claims about constitutional silences and unenumerated rights, such as the right to privacy. But, at bottom, the reading of the Constitution requires that judges, possessing civic virtue, craft plausible solutions to constitutional conflicts out of the vagaries of the text. These solutions, the authors recognize, do not always provide legitimate answers to hard questions for all parties or interests, but ongoing constitutional conflict of a reasonable sort is an acceptable dimension of American public life.

In arguing for constitutional conversation, Tribe and Dorf reject numerous other approaches to reading the Constitution. In their first chapter they direct

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brief but cogent criticisms at numerous other commentators on the textual interpretation issue. Robert Bork's originalism, "dis-integration," or the failure to link constitutional analysis of parts of the text to the reading of the whole document as evidenced in the constitutional jurisprudence of Marc Tushnet and Warren Burger, and "hyper-integration," or the failure to see different objectives in different parts of the document as manifested in the constitutional analysis of Richard Ely, Jesse Choper, Richard Epstein, and David Richards, receive pointed criticism. Often this critique of other interpretive methods for reading the Constitution should be more complete and less facile. More importantly, Tribe and Dorf leave the reader uncertain as to how their method of constitutional conversation is better able to moderate the difficulties ingrained in the universal readings of the Constitution that they criticize.

In their final three chapters the authors address the issue of the level of generality to be used in reading constitutional rights. For example, should Griswold v. Connecticut (1965) be read as creating a right to privacy or just a right for married couples to use contraceptive devices? Their discussion of the appropriate level of generality is really a constitutional conversation contending with Justice Antonin Scalia's idea that societal traditions should be the standard used to fix the scope of constitutional rights. Although the authors do not bare the problems with the value neutrality, measurability, and costs and benefits of Scalia's standard until their final chapter, they do converse about a more flexible standard. They would first define the appropriate level of generality of a constitutional right from the Framers' overall philosophy and from precedents. When the level of generality remained in doubt, judges could rely on widely shared values and the internal logic of prior cases. Final decisions about the construction of a level of generality for a right would involve testing by through the consideration of the truth and falsity of counter examples. In reading rights the authors opt again for a pragmatic legal process.

The discussion of the level of generality has three limitations. First, should political values as important as rights be left to the uncertainty of pragmatic judicial interpretation? The authors need to present more evidence to justify why a fixed or universalistic reading of rights is inappropriate and whether it is wise politically to tolerate an unsettled conception of rights. Second, for reasons that are not clear, the authors do not discuss the other salient problem in reading rights -- the level of scrutiny issue (p. 73). Unlike

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the discussion of generality, which considers the scope of the meaning of a right in a "horizontal" fashion, scrutiny considers the "vertical" dimension of reading rights. Scrutiny analysis raises the question of whether a right is "fundamental" or in a privileged position that demands the evidence and burden of proof demanded to deny a rights claim must be "compelling." Clearly any complete discussion of how to read rights needs to attend to this issue. Finally, the authors should exercise more care in their treatment of Scalia's level of generality standard. The level of generality that they accuse Scalia of using is asserted in a footnote to Michael H. v. Gerald D. (1989). It has yet to appear in distinct language in the Justice's other opinions.

Students of law and politics will find little overt discussion of the politics of constitutional law in this book. However, this is a political book. Tribe and Dorf's method of constitutional conversation buttresses the classical liberal idea that law is separate from politics and that law should channel political choice. They leave the reading of the Constitution to persons schooled in the interpretive practices of legal communities accustomed to respecting law and the symbolic political power of the Constitution. Although the authors encourage a pragmatic and conflictual reading of the Constitution that might appear as more open, participatory, and arbitrary than the universalistic interpretive standards advance by other law professors, theirs is a process inclined to reproduce constitutional understandings and the symbolic power of the Constitution. Theirs is not a way of reading the Constitution that involves interpretive or political communities who question the liberal or legalistic assumptions of approaches to constitutional interpretation offered by legal professionals.