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Jongcheol Kim
laws made pursuant to it, and treaties made under its authority, constitute the
supreme law of the land. Independent of its federalist implications, this clause
can be regarded as the cornerstone of the American form of government. Also,
the premise of the Supremacy clause is the principle that American people
or the Founding Fathers adopt constitutionalism as their basic principle of
constitutional arrangements. What naturally follows from this premise are
a couple of what Tribe called “genuinely invisible” principles or “bedrock”
principles, such as “government by law, not men,” and the rule of law.
Then, if there were no Supremacy clause, what would happen to the con-
stitutional conversations about the American constitution? As Tribe himself
properly described in several parts of his book on the invisible constitution,
there would be no other option to take mostly the same construction as if
there were a supremacy clause; governments, state or federal, cannot help
but be limited by the Constitution because the structure and meaning of the
constitutional texts as a whole do not allow any construction contrary to what
the Supremacy clause has produced. Therefore, what matters is not whether
the constitution is visible or invisible, but only the ideal of constitutionalism. The
basic ideal of constitutionalism or government according to the constitution,
with or without a written constitution, is envisaged to found the very base of
most of what Tribe terms the invisible constitution.
This argument may be justified further by a study of comparative constitu-
tional law on the list of genuinely invisible principles of the American consti-
tution. If most constitutional democracies have those basic principles in either
their constitutional texts or common laws, i.e., in what Dicey called the law
of the constitution, they need to be called “universal principles” of contempo-
rary constitutional democracies rather than “invisible principles” in a specific
constitutional democracy like the United States, because the invisible form
itself cannot be said to carry any significant meaning, but the very ideal of
constitutional democracy can.
Let me take the Korean case as an example. The first principle of
“Government of the People, by the People, for the People” is explicitly pro-
vided in Article 1 of the Korean Constitution stating that “The Republic of
Korea shall be a democratic republic” (Paragraph 1), and “The sovereignty
of the Republic of Korea shall reside in the people and all state authority
shall emanate from the people” (Paragraph 2). “Government of law, not men”
and “the rule of law” suggested as “genuine invisible constitutions” in Tribe’s
understanding of the American Constitution can be found in Article 37
Paragraph 2 of the Korean Constitution providing that “The freedoms and
rights of citizens may be restricted by Act only when necessary for national
security, the maintenance of law and order or for public welfare. Even when
Is the Invisible Constitution Really Invisible?
325
such restriction is imposed, no essential aspect of the freedom or right shall be
violated.” Tribe’s invisible principle assuming judicial review is also constitu-
tionalized in the Korean Constitution by Article 111 Paragraph 1 and Article 107
Paragraph 2, allowing the Constitutional Court and the Supreme Court
respectively to review the constitutionality of statutory legislation and subordi-
nate legislation. The constitutional command prohibiting torture is enshrined
(together with the prohibition of self-incrimination clause) in Article 12
Paragraph 2, while the constitutional norms protecting privacy are guaranteed
by several constitutional provisions like Article 17 (private life and secrecy)
and Article 18 (communication privacy).
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It is very clear that the Korean Constitution has a very magnificent list of
“visible” principles or rights. However, can we Koreans dare to say that the
Korean constitutionalism is far further developed than the American consti-
tutionalism because the latter lacks a visible list of principles and rights of the
people? On the contrary as far as, for example, the autonomy of individuals
in their personal life is concerned, it can be said that the American constitu-
tionalism has maybe accomplished the ideal of constitutional democracy far
further than the Korean constitutionalism, because the latter does still fail to
protect, for example, the autonomy in same-sex marriage, while the former is
quite successful in this field.
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From the comparison of the American invisible constitution as Tribe envis-
aged and the Korean visible constitution as I have argued, we now get to the
concluding point that what matters in constitutional practice or discourse is
not the appearance but the ideal or spirit of the constitution and, furthermore,
that what the constitution does or says is far less important than how to put
the ideal into practice. Actually, Tribe’s invisible bedrock principles should
be considered as “visible,” as they are well ordered by the constitution as a
whole under the umbrella of constitutionalism. So my argument is that the
dichotomy of a visible and invisible constitution is of no use in finding and
understanding universal principles immanent in the constitution.
Then, the next question would be whether it is useless in constitutional
thinking and practice at all. I assume that the effective function of an invisible
constitution could be found in solving the question of constitutional silence
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Along with these specific provisions related to intimate private life, the autonomy of individ-
uals that can be equated with the constitutional right to privacy developed by the Supreme
Court of the United States is to be protected by the human dignity and the pursuit of happiness
clause of Article 10 of the Korean Constitution as the KCC interpreted. See Jongcheol Kim,
“‘Constitutional Law’ in the Korea Legislation Research Institute” (ed.), in Introduction to
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