The "Invisible Constitution": Departmentalism and Meta-Rules

            In his book, The Invisible Constitution, Lawrence Tribe argues that certain invisible constitutional principles, like “one person, one vote”, the protected classes of the equal protection clause, privacy, and judicial review (among others) are necessary extrapolations on the Constitution, achieving a status commensurate with the written text.

            These co-equal offshoots of the unwritten constitution include certain iconic cases and statutes, like Brown, Marbury, the apportionment cases, and the Civil Rights Act of 1964.  Tribe describes the way in which a small part of that statute was elaborated and expanded to include sexual harassment as a form of sex discrimination, a principle axiomatic in American law, unlikely ever to lose that status.

            But why could statutory law formed by Congress as opposed to constitutional law as formed by judicial opinion and precedent not fill the hollow spaces in between the constitution’s words?  Why must it redound to judges to fill in the spaces of our supreme law?

            If Congress were entrusted with interpreting the Constitution and thus filling in its blank spaces, this would represent an abandonment of the theories of judicial review (the judiciary as the body responsible for constitutional review), and judicial supremacy (the judiciary as the branch responsible for resolving disputes between other branches).  It would also eliminate this "invisible constitution"; replacing it with statutory law would help to solve problems of constitutional legitimacy, though it might make the Constitution's provisions more subject to transient political breezes.

            Tribe presents a problem derived from Godel’s Theorem: any rule on how to read the Constitution, especially a rule that to ascertain its meaning only the written text be consulted exactly as it is, itself is extra-constitutional.  Therefore, such a rule disproves/disqualifies itself.  But what if such rules were not set by judges who exercise near plenary power over the constitution and its deployment, but were filled by statutory law enacted by the people’s delegates in Congress?

            A recent stark example of the Court’s jealous defense of its constitutional supremacy came in 1997’s City of Boerne v. Flores.  In this case, Congress challenged the recent decision of Employment Division v. Smith in which the Court overturned the compelling-state-interest doctrine used in Sherbert v. Verner and Wisconsin v. Yoder.  The Court ruled in Smith that as long as a state law is facially neutral, it will not violate the Free Exercise Clause.  Congress passed the Religious Freedom Restoration Act, forbidding state action that infringes religious practice, even as applied, trying to restore the stricter scrutiny of Sherbert and Yoder.

            The Court responded jealously in Flores, striking down the RFRA, indignantly reminding Congress that the Court wields the final word in constitutional matters.  The Court explained to Congress that the 14^th Amendment gives Congress the power to enforce its provisions, not to interpret them.  If there were any remaining question as to whether anyone carries co-equal power to interpret the Constitution, then the Court laid it to rest in Flores.

            Does such a rule run the risk of contradicting the Constitution itself?  Does giving Congress the power to set the rules by which the judiciary may read and exercise the constitution put too much of its power in the hands of the majority?  Does it run afoul of the concept (Federalist 78) that judges should be responsible for safeguarding the minor parties in the community by keeping the majoritarian branches within their assigned limits?  The answer to all of these questions may be yes.  Tribe defends judicial review as necessary to secure the Constitution from majoritarian manipulation (though one fairly asks whether the Court has done such a good job of erecting enduring doctrines, so avoiding the momentary lapses of transient majorities), as I have done in other essays as well.  Still, given the grave errors of the Court’s history, it’s hard to predict that co-equal interpretation would necessarily be worse overall.

The "invisible constitution's"  contents: meta-rules for how to read it; law filled into the blank spaces in the text; investing words with more meaning than their dictionary definitions would allow, are all necessary results of judges’ exclusive hold on the Constitution, byproducts of judicial review and judicial supremacy.  As long as the judiciary remains its highest institutional interpreter, their rules will fill in the gaps around the document’s deliberately vague clauses. 

Although other forces, like the weight of public opinion, the gravity of history, and the demands of public policy and circumstance will help to determine which of their opinions and rules are granted co-equal constitutional status with the document itself, such equality is a necessary result of the constitutional system we have slowly chosen.

            If Congress wielded co-equal constitutional power, as departmentalism would demand, then statutory law might fill in those constitutional gaps rather than judicial discretion and interpretation.  We might do better in this way to avoid the vagaries of the “invisible constitution” and the problems of legitimacy which such an approach must bear.  How can an “invisible constitution”, which was neither ratified, voted on, nor much less created by the people, command their allegiance as binding—even supreme—law?  How can something not of the people’s creation, nor even that of their elected delegates, attain so lofty a status in a system ostensibly predicated on popular sovereignty?

Though this approach presents its own set of problems, it would help to mitigate these constitutional gray areas, and put the people’s document, for better or worse, back into their collective hands.

So what is the bottom line? What does this mean for our constitutional order?  It means that the invisible constitution is an inevitable part of the way this order has developed.  Public reason (in the Rawlsian sense) gives the people some measure of control over which parts of this judicial construct become essential, unwritten parts of their supreme law (in instances like the Equal Protection clause encompassing race, or judicial review being so accepted by the people and politicians).  I have argued elsewhere that a deep (long-lasting) and broad consensus on a given topic of law or politics (i.e. an undeniable public reason as Rawls describes it in both Political Liberalism and select parts of Collected Papers) lends such a policy an equal democratic pedigree to the Constitution itself. 

Elsewhere, I used this argument to substantiate certain aspects of the Supreme Court’s substantive due process jurisprudence, and to discredit any further complaints about the constitutional illegitimacy of such as the ratification of the 13^th and 14^th Amendments and the expansion of federal power in the New Deal (described in Bruce Ackerman’s We the People Vol. 2).  However, that there would be an attenuated connection between such “invisible” constitutional mandates and the people themselves is the necessary result of our judiciary’s political insulation.

It is surely too late to reverse course now without major federal restructuring, probably requiring an amendment or two.  Keeping the system as it stands seems a stable, if not theoretically satisfying, approach to constitutional development. 

But if we continue to reject departmentalism and co-equal constitutional interpretation, then we should check ourselves when complaining about judicial activism, or invention.  We are forced to accept Tribe's argument that a meta-rule constraining the judiciary to pure textual interpretation itself relies on some form of an invisible constitution, and as such disqualifies itself, unless we are willing to embrace an external departmentalist check on judicial supremacy.  Such an invisible residuary is inplicit in the concept of the Constitution as enforceable law (see Article VI, Section 2), cast in vague terms that require elaboration.  As we have entrusted our Court with the highest institutional power to elaborate, we should not complain too much when they do it.