The Invisible Constitution in Comparative Perspective

se-Sandor Institute for Law & Economics Working Paper No. 682, 3 

http://chicagounbound.

uchicago.edu/cgi/viewcontent.cgi?article

=2348&context=law_and_economics

.

109 

See discussion of critical junctures in Capoccia and Kelemen, Supra note 41, 341.

110 

Ginsburg and Melton, Supra note 108, 21.

111 

See generally Christopher Jarvis, ‘The Rise and Fall of Albania’s Pyramid Schemes’ (2000) 37 

Finance and Development 

www.imf.org/external/pubs/ft/fandd/2000/03/jarvis.htm

.

112 

Interim National Constitution of the Republic of the Sudan, note 19, Article 224(1).

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190 

Caitlin Goss

of Hungary, the very frequency of constitutional amendment can encourage 

judges to develop a stable and enduring invisible constitution that sits above 

daily politics. As such, drafters of interim texts will need to consider the possi-

ble interconnection between amendment procedures and judicial review and 

consider which amendment thresholds might best allow for what Arato calls 

‘constitutional learning’ or what Jackson more cautiously hopes for in ‘consti-

tutions as a form of continuous conversation’.

113

Secondly, the tendency for interim constitutions to create permanent 

effects, including through the generation of enduring invisible constitutions, 

highlights the importance of the how interim constitutions are drafted. Interim 

constitutions are typically drafted or agreed to by unelected bodies that rep-

resent key parties or bodies that are not fully representative. As such, tempo-

rary constitutions are premised on a kind of two-stage legitimacy whereby the 

first stage of constitutional drafting (the temporary text) is made legitimate 

by a rejection of the past regime and the promise of a more democratically- 

negotiated permanent text. However, if the interim text ends up being deter-

minative of significant features of the permanent constitution – both textual 

and non-textual – then drafters of interim constitutions must be mindful that 

these texts are not mere placeholders. This knowledge may feed into new 

norms about the level of public and expert involvement in interim constitu-

tional negotiation and transparency and accountability. It may also lessen the 

degree to which interim constitutions may claim to ‘relax the dead hand’ of 

the past by freeing themselves from a founding moment.

114

Finally, I want to note that this chapter has focused on the way in which an 

invisible constitution develops in judicial and legislative spheres. However, I 

think that what is visible and invisible as part of the constitutional bargain will 

also be affected by the popular understanding of the constitution. A popular 

understanding of the constitution will include not only (and perhaps not all 

of) the written text of the constitution, views about the bargain struck at the 

interim stage, the degree of departure from the previous regime and percep-

tions about the desirability of constitutionally relevant practices such as tran-

sitional justice mechanisms. This popular understanding of the constitution 

at the interim stage will influence the kinds of interests represented in public 

consultations about a final constitution and in the types of claims brought 

before constitutional courts in the interim and post-interim era. Thus it is pos-

sible that the people contribute directly to the formulation of the constitution, 

in both its visible and invisible formulations.

113 

Jackson, Supra note 2, 1287; Andrew Arato, Constitution Making Under Occupation: The Poli-

tics of Imposed Revolution in Iraq (New York, NY: Columbia University Press, 2009).

114 

Varol, Supra note 44, 448.

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