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Laurence H. Tribe
about what the Constitution commands, permits, or prohibits from silences in
what courts say about the Constitution. But first it is important to focus on
the substantive issue that divided the Alito majority from the Scalia/Thomas
concurrence. That is the issue of whether the existence of a broad right of
informational privacy should be deemed precluded by the juxtaposition of
the Constitution’s silence about such a wide-ranging right with its textual pro-
tection of more narrowly defined rights that are, in a sense, subspecies of that
broad right. The alternative is to regard the silence as to the existence of such
a right as potentially leaving the matter open.
That the specially concurring justices in NASA focused solely on the
Fourth Amendment as the relevant narrower right and paid no attention to
the First is not of particular significance for present purposes; what counts is
their assertion that, whenever the Constitution narrowly protects a particular
value from one or another species of invasion, its failure to protect that value
from other invasions as well (and, indeed, from the broad genus of invasions
of which the species isolated is but one example) should be taken to slam the
door on the possibility that such other invasions might be constitutionally fore-
closed.
90
That canon of construction, beyond being incompatible with how
the Constitution itself tells readers to treat certain kinds of gaps or silences
(as we will see below), makes sense only in a constitution conceived as a set
of isolated and self-contained points rather than a constitution regarded as a
coherent whole. And that is certainly not the way Chief Justice Marshall con-
ceived it in the seminal McCulloch case.
To return briefly to Marshall’s analysis in McCulloch, its method – which
Professor Akhil Amar has aptly termed “intertextual” – proceeded in significant
part by comparing the words of the Constitution with the words of the text it
replaced.
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Rounding out the summary of Marshall’s method, it is noteworthy
that he also employed “intratextual” comparisons when considering constitu-
tional silences and the significance they should be accorded.
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For instance,
Marshall contrasted the Constitution’s clause empowering Congress “To
make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States,”
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with the Constitution’s ban on state
actions that, without congressional consent, “lay any Imposts or Duties on
Imports or Exports, except what may be absolutely necessary for executing
90
See NASA, 562 U.S. at 161.
91
Akhil Reed Amar, “Intratextualism” (1999) 112 Harv. L. Rev. 747, 799–800.
92
See
ibid.
, at 756–7.
93
U.S. Const. art. I, § 8 (emphasis added).
Soundings and Silences
37
[the state’s] inspection Laws.”
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The Constitution’s silence with respect to the
degree of “necessity” required to comply with the Necessary and Proper Clause
rightly reinforced Marshall’s conclusion that this silence underscored the
degree of deference courts owed to Congress in its judgment of just how essen-
tial a measure was for “carrying into execution” various delegated powers.
95
Nor are textual comparisons, whether “inter” or “intra,” the only rele-
vant ways of distinguishing deliberate (and thus presumptively door-closing)
silences or omissions from unintended (and thus presumptively door-opening)
silences or omissions. Consider, to address a truly fundamental example, the
topic of secession from the Union. Unlike the Articles of Confederation, which
expressly said that the States ratifying the Articles in 1781 had entered into
a “perpetual Union,”
96
the Constitution ratified in 1791 said nothing at all
about the possibility of dissolving the “more perfect Union” described in the
Preamble.
97
We all know how tensions over slavery among the thirteen states that
entered into the new Union required referring to that “peculiar institution”
only euphemistically – with code words like “such Persons as any of the States
now existing shall think proper to admit,”
98
and “all other Persons” (as con-
trasted with “ free Persons”) in the infamous three-fifths clause,
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as well as in
Article V’s explicit carve-out for any constitutional amendments that might
end the slave trade (again identified only obliquely and without ever mention-
ing the dreaded word) before 1808.
100
Less often foregrounded was the way tensions at the Founding over possible
secession by any State that wished to exit evidently required no mention of
the Union’s indissolubility, which the Court in its 1869 decision in Texas v.
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