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Jongcheol Kim
According to Dicey, constitutional law to use a broader term, or the constitu-
tion consists of two sets of rules: “constitutional law in the proper sense of that
term” or “the law of the constitution” and the “conventions of the constitu-
tion” or “constitutional morality.”
12
While the latter is a set of rules consisting
of “conventions, understandings, habits, or practices which, though they may
regulate the conduct of the several members of the sovereign power, of the
Ministry, or of other officials, are not in reality laws at all since they are not
enforced by the Courts”(italics are added); the former is a set of rules which
are “in the strictest sense ‘laws,’ since they are rules which (whether written
or unwritten, whether enacted by statute or derived from the mass of custom,
tradition, or judge-made maxims known as the Common Law) are enforced
by the Courts.”
13
In using this conception of the constitution or constitutional law in a
broader sense, according to Dicey, two things should be noted. First, although
the word “convention” suggests a notion of insignificance or unreality, some
constitutional conventions or practices are as important as any laws. Second,
this distinction differs essentially from the distinction between “written law”
and “unwritten law,” as laws of the constitution such as the Bill of Rights, the
Act of Settlement, and Habeas Corpus Acts, are “written law,” while other most
important laws of the constitution, such as the responsibility of the Ministers,
14
are “unwritten” laws.
15
Interestingly, the main reason for Dicey’s lengthy expla-
nation on this dual form of the constitution is to clarify the main duty or
calling of the constitutional lawyer, that is, to find the subject of constitutional
law in the study of the law of the constitution, instead of the conventions of the
constitution the subject of which is not “one of law but of politics.”
16
This is, in a sense, in the same vein as Tribe attempted to use in deal-
ing with the theme of invisibility of the constitution, though their specific
objectives are different; both tried to discern what should be focused on in
dealing with the constitution. Truly, both Tribe and Dicey point out that the
12
Ibid.
, cxl–v.
13
Ibid.
, cxl–i.
14
According to Dicey, this responsibility of the Ministers is derived from “the combined action
of several legal principles, namely, first, the maxim that the King can do no wrong; secondly,
the refusal of the Courts to recognize any act as done by the Crown, which is not done in a
particular form, a form in general involving the affixing of a particular seal by a Minister, or
the countersignature or something equivalent to the countersignature of a Minister; thirdly,
the principle that the Minister who affixes a particular seal, or countersigns his signature, is
responsible for the act which he, so to speak, endorses.” See
Ibid
. cxlii.
15
The form of rules, written or unwritten, is totally up to the choice of the sovereign in each
country.
16
Ibid.
, cxlv–cxlvi (A. V. Dicey).
Is the Invisible Constitution Really Invisible?
323
traditional conception of the constitution needs to see a genuine face of the
constitution by recognizing its newly formulated aspects, and they have com-
monalities in stressing the limited role of the written text. However, the results
of distinctions are very different. While Dicey appears to stress the importance
of positivity of the constitution, Tribe stresses that of the invisible parts of the
constitution. In terms of the usefulness of the dichotomy both tried to dis-
cern, I would give a better grade to Dicey than to Tribe. Dicey was arguably
successful in propagandizing what constitutional lawyers do or how positivist
approaches should be focused at the center of constitutional law, while Tribe
appears to fail to achieve anything new in constitutional discourse.
17
His expo-
sitions can be seen as an artificial reformulation of the self-evident nature of
the constitution that gives rise to so many fundamental questions: is such an
invisible constitution really invisible, or can only what we can see in the form
of the written text of a constitution be said to be visible? Is “what the consti-
tution says” different from “what it does?,” and finally “does it matter at all
whether the form of the constitution is visible or invisible?”
11.2. Argument One: The Nature of the Constitution as
the Supreme Law of the Land and Its Implications
The straightforward answer to those questions raised above should be in the
negative. The reason why constitutional writers have delved into what the
constitution says is mainly to verify what the constitution does so that they
can provide not only governmental powers, but also a general public abiding
by the rule of the government with the guidance of practices and actions. So
Tribe’s distinction between constitutional saying and doing is a misleading
one ignoring the identical interconnection between the two. Put otherwise,
what the constitution says is the other side of the same coin, that is, what the
constitution does. Then, what we have to ask is why the constitution matters.
My answer to this founding question is that it is because the constitution
is the supreme law of the land. Once the sovereign decided the basic form
and values of government, and if it is a constitutional democracy with or
without a written constitution, the first principle is that the constitution is
the supreme norm to which everything shall be subordinate. Is this maxim
invisible in the Constitution of the USA? No. Article IV Clause two of the
Constitution of the United States provides that the Constitution, federal
17
His conclusion in this regard is arguable, partly because the subject of constitutional lawyers
should not be confined to the ambit of a judicial process-oriented ideal. They need to play a
role in making the conventions of the constitution or political morality compatible with the
constitutional principles, hopefully in collaboration with political scientists.
324
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