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Jongcheol Kim
is a judicial one which can correspond to the position of the KCC’s major-
ity opinion: whether a customary constitution is a proper form of law having
enough justification to strike down statutes. The second one is a constitu-
tional aspect which the KCC veiled, intentionally or unintentionally, but
it concerns the constitutional effects in terms of the separation of powers
delegated by the sovereign people in constitutional arrangements: which is
better positioned to fill the gap caused by, if any, constitutional abeyance,
the National Assembly or the Constitutional Court? Why are these two
aspects intertwined with each other? My assumption is that the reason why
the KCC’s majority opinion lifted the controversial legal tool of customary
constitution from the unknown expanse of constitutional theories is to take
over the legislature’s role to represent the will of the people in the form of
constitutional construction or review. In other words, if the answer to the
first judicial aspect of the issue is No, the natural result of the KCC’s majority
opinion is nothing but the usurpation of the legislative power of the National
Assembly on political matters.
Two preliminary questions should be answered in order to get to the correct
conclusion of the major issue. First, is it possible to identify a customary con-
stitution in a constitutional democracy with a written constitution? Second,
if so, does the customary constitution have the same effect as the written con-
stitution? The answer to the first question may depend upon the structure of
the written constitution, the constitutional history regarding the form of the
constitution, and the extent of constitutional stipulation. However, the KCC’s
majority recognized the form of customary constitution as a kind of a priori
source of constitutional law by assuming that
notwithstanding the existence of a written constitution, it is impossible to
completely provide a written constitution, and, in addition, the Constitution
pursues succinctness and implication as the basic law of the nation.
Therefore, there is room for recognizing certain matters though not written
out in the formal code of the Constitution as unwritten constitution or cus-
tomary constitutional law. Especially, there may be certain circumstances
where no express provision is necessarily included in the text for those mat-
ters that are self-evident or presupposed or that are general constitutional
principles at the time of the establishment of the written constitution.
23
A lot of constitutional and legal arguments about each statement of this extract
may arise. But since our focus is on the role of the unwritten constitution and
23
Ibid.
(English translation by KCC), available at
http://english.ccourt.go.kr/cckhome/eng/
decisions/majordecisions/majorDetail.do
(last accessed on July 20, 2017).
Is the Invisible Constitution Really Invisible?
331
on the consistency of the constitutional reasoning based upon this invisible
constitution, it would be enough to mention just two major flaws here. First,
the scope of the unwritten constitution explained by the majority is not cau-
tious enough to be persuasive. The majority opinion made a great effort to
include “those matters that are self-evident or presupposed or that are gen-
eral constitutional principles at the time of the establishment of the written
constitution,” so that it can take advantage of the reliable effect inherent in
such universal principles in the course of justification for a customary consti-
tution with no reliable image. As I have argued in challenging Tribe’s “genu-
inely invisible” principles previously, those self-evident principles cannot be
regarded as an “unwritten constitution,” but as the written constitution itself.
They are the very base upon which constitutional text is written. They are
“invisible” because they are too obvious to deny. Therefore, they should not
be abused or misused to justify the constitutional value of a controversial con-
ception of customary constitution that is by nature the result of constitutional
practice and interpretation.
Second, even if a customary constitution could be regarded as a priori
source of law, further justifications would be required to give it the same sta-
tus as the written constitution. The majority moved on to undertake this task
as follows:
[As] the citizens of the Republic of Korea are the holders of the sovereignty
of the Republic of Korea and of the highest authority to establish the consti-
tution, the citizens not only participate in the establishment and the revision
of the written constitution, but also may directly form as necessary constitu-
tional law matters that are not included in the text of the written constitu-
tion, in the form of customs. Then, the customary constitutional law should
be deemed as the expression of intent of the constitutional determination
of the citizens as the holders of sovereignty, like the written constitution,
and should also be deemed to have the same force as that of the written
constitution . . . The principle of sovereignty or democracy requires the par-
ticipation of the citizens in the establishment of the positive law, written or
customary, in the entirety, and the customary constitutional law established
by the people binds the legislator and has the force as constitutional law.
24
The majority of the KCC reached the conclusion that a priori recognition of
a customary constitution can be justified by the people’s sovereignty that also
provides a justification for the customary constitution’s status having the same
effect as the written constitution.
24
Ibid.
332
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