Tribe’s Unified Field Theory and the Constitution’s Axiom of Self-Government

Professor Tribe’s book, The Invisible Constitution, lays out arguments for the existence, development, and definition of the Constitution’s “dark matter”, those rules, doctrines, and interpretive methods which are nowhere contained in the document itself but are indispensible to its utility and existence.  It is a truly brilliant book; as my first exposure to Professor Tribe’s work, my amateurish self comes away thoroughly impressed.

            But this entry is not a book review.  I highly recommend that anyone interested in constitutional interpretation read it (it’s not very long, and the chapters are very short, lending it well to periodic reading), but I want to assess a particular part of the book: pages 128-141, where Tribe integrates substantive due process themes of privacy and liberty of contract into a broader concept in the invisible constitution, self-government.

            Tribe synthesizes the theme of those pages: “If we think of self-governing relationships, within communities that are not themselves enclaves of hierarchy and exploitation, as presumptively entitled, under the invisible Constitution, to protection from interference by government entities outside those relationships—interference that is unconstitutional absent unusually persuasive and narrowly tailored justification—then we have something like a ‘unified field theory’ of much of the invisible Constitution as it has, by and large, actually evolved over the past seven decades or so.”

            By way of summary, Tribe spends the previous pages explaining substantive due process’ (SDP) role in the invisible Constitution.  Suspending judgment on most of the particular provisions of the to which the Court has applied SDP, Tribe argues that nearly all of its iterations, from parental freedom (Pierce v. Society of Sisters, Meyer v. Nebraska) to the doctrine of selective corporation (Palko v. Connecticut, Gitlow v. New York [among many others], and The Slaughterhouse Cases [insofar as these removed the Privileges and Immunities Clause from the incorporation debate]) to the liberty of contract (Lochner v. New York and its progeny), share a common theme embedded in the invisible constitution: self-government and the principle of non-interference.

            Tribe does not argue that Lochner was correctly decided; rather, he believes the error lay in the Court’s refusal to acknowledge the massive disparities in bargaining power that its liberty of contract doctrine engendered.  Insofar as many other liberties have been read into the Due Process Clauses, and absent any rigorous analysis showing why selective incorporation and privacy belong there while contractual freedom does not, it is necessary to find a way to synthesize these cases into a single coherent theme without resurrecting Lochner and its ilk.  This Tribe does with aplomb.  He stops short of justifying SDP entirely on grounds of autonomy and popular sovereignty; his mission seems more tightly cabined than that, but it is clear he regards it as an important overarching theme of both SDP and the invisible Constitution.

            Now for my critique.  Leave it to a master like Tribe to find a way to legitimate SDP by appealing to the Constitution’s general theme of popular sovereignty.  The latter concept is hardly original; I encounter it regularly in my studies, extracurricular and curricular both.  It is the underlying theme of Bruce Ackerman’s We the People Vol. 2 (have yet to read Vol. 1 and cannot find Vol. 3), and a recurring observation in Akhil Amar’s exposition of the Constitution and its history in America’s Constitution: A Biography.  But what’s impressive about Tribe’s synthesis is the way he connects this noble theme to the most suspect of doctrines.

            But I fear Tribe runs into problems he does not—and perhaps cannot—fully reconcile with this tenet of the invisible Constitution.  For example, Tribe also argues that the Dormant Commerce Clause is equally part of the invisible Constitution: he both claims that any justification of this doctrine must come from reasoning outside of the text (the overarching theme of his book), and that it is born of necessity and general Constitutional principle (the notion of a unified nation, of the invalidity of a government passing laws regulating people and places outside of its jurisdiction, etc).

            I sense some conflict between the principle of non-interference that undergirds SDP jurisprudence as Tribe presents it, and his defense of the Dormant Commerce Clause.  I acknowledge the conflict more to pertain to the principles as applied than in the abstract, but I find it difficult to reconcile a strong Constitutional shield of non-interference protecting states, cities, and groups of individuals to conduct their own affairs—but in times of pressing need of government interference—with a doctrine which (in conjunction with the Commerce Clause as construed in the modern era) strips the states of yet more of their power to regulate commerce.  Are those areas that the DCC touches “unusually persuasive,” and is the Court’s elaboration of that doctrine a “narrowly tailored justification”?

            I’ll spare any readers a detailed analysis of the DCC and its consequences for Tribe’s thoughts in this section.  In sum, it struck me as odd that one scholar would defend both the DCC and a very strong general principle of federalism—basically arguing that the Court should apply strict scrutiny in assessing federal interference in lower-level self-government, but should maintain its capacious extra-textual Commerce Clause jurisprudence.

            I should also add that Tribe does not connect the concept of private self-government with which he defends the contract doctrine and the strong federalism with which he follows it.  He appears to gloss any differences between the public-private relationship and the vertical federal structure.  Perhaps it is acceptable to address this distinction by claiming a general right to self-government both of the sovereign people, and the pre-existent states whose powers predate the Constitution (he does address the police powers doctrine as part of the invisible Constitution earlier in the book).  But I wish he had acknowledged the distinction.

            I’m continuing to read Professor Tribe’s book; it is outstanding. I hope to finish it in the next day or so.  I recommend it heartily for anyone looking for a scholar’s refutation of strict textualism—not only on normative grounds, but also on purely expository grounds.  Tribe says both that we should see the “dark matter” of the Constitution, but also argues that not to acknowledge it is both to disqualify unwittingly many of the Court’s most important decisions and enduring doctrines.  This dark matter is both pervasive and essential to our Constitutional order—one would be hard pressed to come away from this book with any other conclusion.