far concerning the fiscal decentralisation during the reform with constitutional analysis. For
an overall picture of the 1980s and 1990s, see Donald J. S. Brean (ed.) Taxation in Modern
China (New York, London: Routledge, 1998).
404
Han Zhai
Tribe’s Invisible Constitution and the debates over China’s unwritten constitu-
tion. It will continue with an existing study on China with some methodolog-
ical notes for discussion in the following parts. In particular, existing critiques
on Tribe’s work have echoed in the debates on China’s unwritten constitu-
tion, which implies the dangerous potential to confuse constitutional issues
with political reality when applying the invisible or unwritten constitution
in China, although they are conceptually equal to each other. Then, with
a methodological modification on applying the ‘invisible constitution’ into
China’s 1982 Constitution, we will start from the articulated political structure
and analyse all three types of sub-state decentralisations with regard to both
their fundamental framework and any crucial changes during the reform. The
discussion concludes with a visualisation of the picture of China’s unitary sys-
tem with specific features in each of the three decentralisations, which might
be a new opportunity for further research.
14.2. From Tribe’s Invisible Constitution to
the Unwritten Constitutional Debates
14.2.1. Reviewing Tribe’s ‘Invisible Constitution’
Tribe’s book fails to provide a clear definition of the ‘invisible constitution’, but
it does try to build the interpretative methods for the constitution itself. The
constitutional interpretation of specific articles should be guided by constitu-
tional principles structured by different influences and priorities. Tribe claims
there are two sets of constitutional principles: the meta-principles and the
fundamental constitutional principles; the former will determine how to read
the rest of the text.
9
In Tribe’s work, this type of constitutional interpretation
connects constitutional provisions, forming the ‘resulting triangle’ from the
‘geometric structure’ of the constitution. In general, interpretative methodol-
ogy with non-textual foundations might be an issue in discovering the ‘invisi-
ble constitution’. The legitimacy of the ‘invisible constitution’ is ‘enhanced by
its apparent malleability’; a concept that actually allows non-judicial and even
non-governmental actors to present their own views regarding constitutional
meaning.
10
The ‘invisible’ constitution even implies criticism, as it might draw
careless interpretation from scholars, especially considering that the ‘invisible
9
Laurence H. Tribe et al. ‘The Invisible Constitution and the Rule of Law’ (2009) 62 Bulletin
of the American Academy of Arts and Sciences 59, 61.
10
Kermit Roosevelt III, Book Review: ‘The Indivisible Constitution’ (2008) 25
Constitutional
Commentary 321, 340.
The ‘Invisible Constitution’ seen Realistically
405
constitution’ is ‘more malleable and less permanent’ than the visible one.
11
The unreliability of this idea is also questioned. If the answer cannot be found
in the text, history, structure or precedents which are solid enough for infer-
ence, how can constitutional scholars draw the line between ‘the unthinkable
and the unconstitutional’?
12
This issue is echoed in Chinese constitutional
research, where the ‘invisible’ is conceptually equal to the ‘unwritten’.
Indeed, the transparent part of Tribe’s work is considered to be proof of
a robust unwritten constitutional law.
13
Tribe’s methods for interpreting the
‘invisible constitution’ might cause ‘constitutional confusion’ because they do
address the ‘inevitable starting place’, which necessitates an effective analysis
of the unwritten constitution. The question of how to explain the ‘invisible’
part of the constitution is addressed by detecting the unwritten part of the
written constitution if the written constitution is an ideal, aspirational and
symbolic charter of the state as well as the political reality that translates con-
stitutional aspirations into action.
14
This conceptual reduction is crucial if the
distinction between ‘visible’ and ‘invisible’ is to make any analytical sense, as
focusing on the ‘invisible constitution’ might ‘by the same token’ invalidate
such a distinction.
15
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