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Friday, March 27, 2009

Weekend Reading: Segall on Tribe's "Invisible Constitution"

Thanks, Dan, for posting the table of contents for the Michigan Law Review's annual books issue; it's always one of the better annual reads.  I haven't seen hard copies of this yet.  In the meantime, readers may enjoy Eric Segall's review, in Northwestern's Colloquy, of Laurence Tribe's Invisible Constitution.  It's a very enjoyable read.  I have reviewed Tribe's book here, and I reach very similar conclusions.  Both of us are dissatisfied with the book, but I must say that it provided a very useful basis for discussion of substantive due process in my constitutional law class the other day.  

Incidentally, I don't know whether it's generational, regional, or whether it has something to do with the [insecurity/common sense] of current law students, but I find it hard these days to get students even to acknowledge the possibility of legitimate substantive due process rights -- and the P & I Clause and the Ninth Amendment don't tend to change that if they're included in the conversation.  in saying so, I'm not tipping my hand as to whether I think they're right or wrong; I'm just a little startled that I find it so hard to find defenders of this doctrine, even though it's plain that many students agree with some of the outcomes in some of these cases.  On the other hand, some of the few who are sympathetic tend also to think Lochner was rightly decided.  Interesting!  Quite a different reaction from the fairly orthodox reactions I experienced from my classmates when taking con law at Columbia a million years ago.   

Posted by Paul Horwitz on March 27, 2009 at 01:10 PM in Paul Horwitz | Permalink


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Paul, thanks for the plug. Andrew, most of my students also are not troubled by unenumerated rights, especially after reading the 9th Amendment. One of the points I made in my review was that Tribe's lengthy defense of the "unwritten" on "invisible" constitution as a descriptive matter was old news.

Posted by: Eric Segall | Mar 28, 2009 2:06:28 PM

Interesting post and links (as always).

Posted by: Orin Kerr | Mar 28, 2009 1:51:49 AM

Funny, Paul. I can't seem to find any students who think there is anything problematic about protecting unenumerated substantive rights.

Posted by: Andrew Siegel | Mar 27, 2009 5:38:20 PM

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