The Invisible Constitution

April 12, 2010

Introduction

Lawrence Tribe’s ‘The Invisible Constitution’ is unoriginal and obscure. Below I will introduce some thoughts or alternative explanations for some of the issues raised by the author.  

I.                   Invisible Constitutional Norms vs. Carl Schmitt’s Metaconstitutionalism

Tribe does not differentiate his theory of invisible constitutional norms from Carl Schmitt’s metaphysic theory of constitutional law. Schmitt suggested nearly a century ago that a Constitution was a collective, heavy made, human creation. A Constitution was therefore much more than its text. Furthermore, according to Schmitt’s monistic view of the constituent power of the nation, the summa auctoritas and the summa potestas coincided in the sovereign, namely, the People.

Therefore, the Constitution was much more than its text. It had an ontological existence that preceded the constitutional text itself, and the bearer of the constituting power was the People. This allowed Schmitt, following Sieyes concept of the ‘pouvoir constituant’, to hold that the People was the ultimate holder of the “constitution-granting power”, “above any political institution or legal norm”.[1]

However, Schmitt was aware that the People was normally not an homogenously organized entity, imbued with substantive interests, but rather was a live and contradictory body, that would form its identity and Constitution through politics. Therefore, from Schmitt’s constitutional theory we could even conclude that a Constitution need not be written in order to be real or “actual”, using Tribe’s words.

            Tribe’s failure to address Schmitt’s work is problematic because it severely undermines the originality of his work. This is even more problematic when at the national level he did not substantially differentiate his theory of an invisible Constitution from classic and contemporary scholarship elaborating on the topic of the ‘unwritten constitution’.

II.                Liberal Constitutionalism vs. Communitarian Constitutionalism

The author tries to make the case for the existence of an invisible Constitution but fails to show the sources of such invisible Constitution. Paradoxically enough, instead of making a strong case for a liberal theory of constitutional law, he makes the case for a communitarian theory of Constitutional law. His theory poses certain threats for democratic constitutional theory, as it obscures the content of the Constitution, and abandons it in the hands of prevailing social trends and political tendencies.

Rights of minorities and excluded sectors of the society are therefore put at risk, and social harmony is therefore endangered. In brief, as national values can suddenly change from the defense of democracy and liberty to the defense of chauvinism, intolerance and authoritarianism, an interpretation of what the Constitution is based on political transitory preferences of the majority, can be dangerous.  

            Finally, Tribe’s theory of non textual constitutional principles and requirements, i.e. the antisecession principle, is inadequate. Those “principles and requirements” can better be explained as prevalent national values, i.e. a political principle/value of political unity of the nation. Put other way: it is true that some national values may have been incorporated as textual  norms in the Constitution, but there may be values of the utmost importance outside the Constitution that nevertheless contribute to the overall harmony and cohesion of a community. Not every moral, ethical or political value generally accepted by a political community is to be deemed as forming part of an invisible Constitution. They may be sociologically, culturally and politically relevant pursuant to the institutional organization of society, but nevertheless are outside the Constitution.

However, those values have tensions and interactions with the Constitution. When those values contradict constitutional principles, political turmoil ignites or political action takes place. If tensions do not solve peacefully, even violence can explode. It is as if two different forces coexisted, interacting in harmonic ways sometimes, and in contradictory ways in others. One is the Constitution that legally binds society and guarantees the prevalence of the rule of law; the other is the social ethos putting pressure on the Constitution, struggling for the recognition of new rights, values, and social principles.

III.             Constitution as a Legal Document vs. Constitution as a Political Document and Regulating Norm of the Struggle for Power

Tribe ignores the impact of politics, authority and power over the Constitution. Some interpretations of the Constitution are impossible, unfeasible or unthinkable, not because some invisible Constitution gives us a single right answer to some Constitutional question. In many cases that kind of interpretation is not plausible simply because it is politically unviable, or because it contradicts the realities of power and authority.

The author seems to ignore that the text of the Constitution is above all a political document that aims to set forth the guidelines of good governance and social life of the community, and not just a legal document. However, the Constitution is not the deepest level of political commitment. While it might be reasonable to admit that the Constitution is the fundamental law, it is not necessarily true that the Constitution is the fundamental political agreement of a polity. There may be principles more fundamental than the law. As Jack Goldsmith has argued, Lincoln’s suspension of the habeas corpus right in time of war was legitimate, although remotely constitutional. However, his actions found justification in the prevailing political principle of preserving the unity of the republic.[2]

            Furthermore, I believe that there are certain core aspects of social and political organization that Constitutions may regulate, but should not, given the self-destructive implication that it would have for the polity. One of those core aspects, for example, is the right to revolution of the peoples of a liberal democracy. It is my belief that Tribe would be inclined to admit that this is an invisible norm “deeply embedded in the American Constitution”. It is preferable in my view, however, to leave those central problems of political organization on the hands of forces competing for power and command of the social body. Constitutionalizing those aspects –whether visibly or invisibly (by admitting the existence of the invisible Constitution) – opens  an undesirable door to political turmoil and instability.

IV.             Dark Matter vs. Dark Water

The Invisible Constitution does not answer why we should prefer the explanation of existing ghostly constitutional norms instead of that of lacunas in the Constitution that must be filled by courts. Adopting the latter position would be an implicit admission of the natural and even desirable limits of constitutional design, and would help us to delimit clearer boundaries of what the Constitution is.

V.                Constitutional Values vs. Religious Values

The author gives no relevance to religious values, as opposed to constitutional values. I wonder whether the value of autonomy defended by Tribe is a religious and cultural value (and right) defended by Protestantism rather than a constitutional right guaranteed by some invisible constitution. Is it both? He doesn’t provide a convincing account explaining why he believes it is an invisible constitutional right instead of simply admitting that it is a religious-cultural value of Protestantism?

Conclusion

            In conclusion, I believe that Tribe’s ‘The Invisible Constitution is unpersuasive, obscure, and above all, unoriginal.

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[1] Andreas Kalyvas, Who's afraid of Carl Schmitt? Philosophy Social Criticism 1999; 25; 87; vol 25 no 5 • pp. 87–125

[2] Goldsmith, Jack. The Terror Presidency. Chapter 1.