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America's Constitutional Narrative America’s Constitutional Narrative Laurence H. Tribe Abstract: America has always been a wonderfully diverse place, a country where billions of stories span- ning centuries and continents converge under the rubric of a Constitution that unites them in an ongoing narrative of national self-creation. Rather than rehearse familiar debates over what our Constitution means, this essay explores what the Constitution does. It treats the Constitution as a verb–a creative and contested practice that yields a trans-generational conversation about the meaning of our past, the im- Downloaded from http://direct.mit.edu/daed/article-pdf/141/1/18/1830095/daed_a_00126.pdf by guest on 25 September 2021 peratives of our present, and the values and aspirations that should point us toward our future. And it meditates on how this practice, drawing deeply on the capacious wellsprings of text and history, simulta- neously reinforces the political order and provides a language for challenging its legitimacy, thereby con- stituting us as “We, the People,” joined in a single project framed centuries ago that nevertheless remains inevitably our own. What is the Constitution? This question has puzzled many of its students and conscripted whole forests in the service of books spelling out grand theories of constitutional meaning. In their quest to resolve this enigma, scholars have power- fully illuminated both the Constitution’s inescap- LAURENCE H. TRIBE, a Fellow of able writtenness and its unwritten extensions, its the American Academy since 1980, bold enumeration of rights and its construction of is the Carl M. Loeb University Pro- structural protections lest those rights become fessor and Professor of Constitu- mere “parchment barriers,” and the centuries-long tional Law at Harvard Law School. dance of text, original meaning, history and tradi- The recipient of ten honorary de- tion, judicial doctrine, social movements, and aspi- grees, he was appointed by the rational values. They have documented its grandest Obama administration in 2010 to serve as the ½rst Senior Counselor achievements and its most appalling failures– for Access to Justice, and he cur- aspects of its story that are also, in a deep sense, our rently serves as a Member of the achievements and failures as a nation. For the Con- President’s Commission on White stitution is more than just a historical artifact House Fellowships. His many pub- guarded by the National Archives, or a source of lications include The Invisible Consti- legal authority invoked by the courts to adjudicate tution (2008), American Constitutional cases. True to its name, it constitutes us as a people Law (3rd ed., 2000), and On Reading the Constitution (with Michael Dorf, –e pluribus unum–and draws all of our cross-gener- 1991). He was elected a Member of ational debates into a project set in motion by, and the American Philosophical Socie- unfolding through, its written and unwritten di- ty in 2010. mensions. © 2012 by Laurence H. Tribe 18 Whatever else the Constitution may be all your piety nor wit shall lure it back to Laurence H. –and I do not purport to offer a complete cancel half a line, nor all your tears wipe Tribe or ½nal answer to that question–its un- out a word of it.” folding interpretation and implementa- It is not by participating in revisionist tion through the crucible of competing mutilation of the Constitution’s text, but stories about constitutional values thus by engaging in the unending debate over represent elements of a practice essential incorporating the document into our self- to the creation and perpetual re-creation understanding at each moment in time, of “We, the People.” Efforts to pin it down overlaid with still-potent and anachronis- or freeze its development in the historical tic echoes of a history that is not even past, past miss this crucial lesson: debates over that we truly engage in the task of collec- constitutional meaning necessarily involve tive interpretation and reinterpretation. Downloaded from http://direct.mit.edu/daed/article-pdf/141/1/18/1830095/daed_a_00126.pdf by guest on 25 September 2021 episodes in an unsettled enterprise, rather This is the truest sense in which we experi- than the search for a long-lost key that un- ence our Constitution as a verb. We navi- locks the secret of some ultimate consti- gate the Constitution, its hazards, its shal- tutional truth. Put simply, the Constitution lows, its depths; we explore it still; we is a verb, not a noun. And sometimes, as we learn from our own adventures and mis- teach our children in elementary school, adventures. Otto Neurath, an Austrian distinguishing between a verb and a noun writer of the Vienna Circle, evocatively can make all the difference in the world. offered the analogous image of “sailors who must reconstruct their ship on the On the second day of the 112th Con- open sea,” unable ever “to start afresh from gress, January 6, 2011, congressional lead- the bottom” but fated to use “the old ers decided to read what they advertised beams and driftwood” to reshape the ship as the Constitution of the United States. while using whatever remains for support But they had the chutzpah to expunge pro- as old beams are taken away. visions of that celebrated document that So too the perpetual project of fashion- they believed modern developments had ing and refashioning ourselves into “We, rendered obsolete, or even downright em- the People,” guided by our Constitution. barrassing–such as the infamous Three- Justice Robert Jackson once wrote of the Fifths Clause and the Fourteenth Amend- “½xed star[s] in our constitutional con- ment’s reference to the right of a state’s stellation.”3 His metaphor seems singular- “male inhabitants” to vote.1 Treating the ly apt–though for a reason he might not Constitution as a creed to be recited in have envisioned. The stars themselves properly updated, politically correct, and may be ½xed, but the task of navigating by perhaps theologically approved form– them is one that inevitably calls for hu- rather than as the inescapably flawed and man insight. Thus, the points of light that invariably contested narrative of our na- punctuate the night sky, like the discrete tional struggle over the fundamental com- provisions of the Constitution’s text, form mitments that de½ne us as a people–those patterns that speak to poets and philoso- political leaders ignored the capacity of phers perhaps more than they do to physi- superseded provisions to serve as anti- cists and astronomers. The task of con- dotes to “collective amnesia about [our] necting the dots with stories–narratives, national missteps.”2 They forgot the if you will–of our past and future ulti- power of the deathless lines of Omar mately rests on acts of imagination.4 Khayyam’s Rubaiyat: “The moving ½nger As we have come to understand, the writes, and having writ, moves on. Nor single tapestry of star-glittered sky that 141 (1) Winter 2012 19 America’s we see above us represents not one simul- West, stories about America as a nation Constitu- taneous reality but a number of different of immigrants who came to these shores tional Narrative realities, each from its own locus in time, in search of liberty and equal opportuni- yet all reaching us at the same moment. ty, and stories about America as a distinc- The Constitution, like the night sky, is tive country that has always existed free composed of elements drawn from, and from those forms of feudalism and social reflecting the concerns of, strikingly dif- hierarchy characteristic of the Old World ferent eras in our history. Like the sky we or has self-consciously thrown them see at night, our Constitution retains, as off.”6 Such narratives of aspiration and though still vital and unchanged, any progress, as well as counternarratives of number of features that–like supernovae conquest and self-deception, exploitation that have collapsed into invisible black and decay, “are as central to constitution- Downloaded from http://direct.mit.edu/daed/article-pdf/141/1/18/1830095/daed_a_00126.pdf by guest on 25 September 2021 holes long before their light reaches our al interpretation as the opinions of any eyes–might have long since been erased jurist,”7 and indeed often play central or transformed. Readers of the Constitu- roles in the most influential of those judi- tion must project patterns onto its provi- cial opinions–opinions that not only set sions and make arguments in the name of forth conflicting legal arguments about invisible structures–structures that ob- the meaning of America’s founding doc- servers across the ideological spectrum uments, but also promulgate competing can only describe as the “tacit postulates” narratives through and against which of the constitutional plan.5 Americans debate the meaning of their past and the shape of their future. This essay is a meditation on how those We need not believe that many people postulates express themselves through actually read, much less pore over, the competing historical narratives that draw texts of those opinions, or even the texts on the terms of our Constitution to pro- they purport to interpret and elaborate, pel us as a people across time and space. in order to recognize the deep and dy- That meditation is possible because the namic interplay between those overlaying United States of America is itself less a texts, the stories they tell, and the themes place than a story–or, more precisely, a in terms of which we conduct our most cluster of hundreds of millions of stories, persistent national conversations.8 some stretching back to before the 1700s, To be sure, the recent immigrant from others unfolding at this moment, still Latin America, the third-generation Amer- others not yet begun–and because our ican Italian, and the American Indian are Constitution provides a capacious home not likely to agree on a single tale as they that is readily transformed as new stories spin out their versions of the nation’s nar- join the practice of divining, contesting, rative.
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