The Invisible Constitution in Comparative Perspective

3.6.6.  Holism and Structure

Questions about an invisible or unwritten constitution also arise in connec-

tion with constitutional arguments from the structural properties of the con-

stitutional text. In the American context, the principle of separation of powers 

is the most well-known and widely accepted example of a principle of con-

stitutional law that is not explicitly stated in the text, but which is alleged to 

flow from the overall structure of the text. Structural arguments are related 

to another feature of constitutional interpretation which is sometimes called 

“holism.”

For example, Akhil Amar articulates the following description of a general 

method for determining the content of the invisible or unwritten constitution:

51 

See John McGinnis and Michael Rappaport, “Original Methods Originalism: A New Theory 

of Interpretation and the Case against Construction” (2009) 103 Northwestern University Law 

Review 751.

52 

Philip Bobbitt, Constitutional Interpretation (Hoboken: Blackwell Publishing, 1991), 12–13.

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Originalism and the Invisible Constitution 

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A single methodological idea unifies all the foregoing case studies and 

hypotheticals. On each topic, clause-bound literalism fails. Sometimes 

the key clause in isolation is simply indeterminate. (The phrase “executive 

Power” can be read narrowly or broadly on the issue of presidential immu-

nity from prosecution.) Other times, the most salient clause, in isolation, 

sends a rather misleading message. (The First Amendment speaks only of 

“Congress,” but surely presidents, federal courts, and states must also honor 

citizens’ rights to express political opinions.) On occasion the Constitution’s 

true meaning is very nearly the opposite of what the applicable clause seems 

to say quite expressly. (The vice president does not properly preside over his 

own impeachment.) This chapter’s unifying idea is that we must read the 

Constitution as a whole – between the lines, so to speak.

53

Let us use the name “constitutional holism” for the view that the meaning 

of the Constitution is the meaning of the whole document or the “holistic 

meaning.”

54

 We can distinguish “holistic meaning” from “clause meaning” – 

the meaning that results from a clause-by-clause interpretation that considers 

each clause in isolation. What should originalists think about constitutional 

holism?

Public-meaning originalists are committed to the public-meaning thesis. 

The communicative content of the Constitution is a function of contextu-

ally enriched semantic content. But what if individual words and phrases 

cannot be understood in isolation because the Constitution is an organic 

whole? For example, the phrase “rights . . . retained by the People” in the 

Ninth Amendment might not be comprehensible without reference to “We 

the People” in the Preamble, which might suggest that “the People” is a pol-

ity and not a collection of individuals. Likewise, the Ninth Amendment uses  

the phrase “the enumeration of certain rights in this Constitution.” Gleaning 

the meaning of this phrase seems to require reference to what is now called “the  

Bill of Rights,” and once that has been accomplished, the meaning of  

the phrase “rights . . . retained by the People” may be clarified. For example, 

the “retained rights” which are not to be denied or disparaged may be of the 

same type or kind as the “enumerated rights” such as the freedom of speech 

and press, the right to bear arms, the right to due process, and so forth.

Does holistic meaning provide a better account of the communicative 

content of the Constitution than clause meaning? To get at this question, we 

53 

Amar, Supra note 6, 47 (emphasis added).

54 

See e.g., Akhil Reed  Amar, “A Few Thoughts on Constitutionalism, Textualism, and Pop-

ulism” (1997) 65 Fordham Law Review 1657, 1659 (observing “the importance of looking at the 

Constitution as a whole because what was ratified was the document, not individual clauses” 

and “[t]he clause is not the unit, or at least [not] the only unit of analysis”).

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