172
Caitlin Goss
To draw this back to the invisible constitution, the question of how to
identify which extra-constitutional features are in fact part of the ‘invisible’
constitution must be resolved through Hartian questions about recognition
and the treatment of certain features as constitutional.
11
Moreover, the more
one approaches a broader understanding of constitutional meaning (as in
Emerton’s approach) and the further away one moves from a textualist or
originalist understanding (as per Solum and Goldsworthy), the more the two
questions collapse into one. That is, the more that we include in the invisible
constitution, the more work that must be done on an empirical basis to define
it. Perhaps the key difference between the two groups is one of emphasis or
purpose: the conceptual approaches attempt to answer normative questions
about what should count as part of the invisible constitution; the sociological
or empirical approaches attempt to answer descriptive questions about what
in fact counts as or affects the composition of the invisible constitution and
thereby the visible constitution.
Finally, I want to make the point that visibility and invisibility, and indeed
inclusion in either constitution so defined, may be a question of degree and as
Dixon and Stone have observed, of timing.
12
Certain features of a constitution
will become more visible or less visible or more or less
salient, depending
upon their reception by constitutionally relevant actors.
13
Dixon and Stone
observe that if we disconnect the visible constitution from the notion of the
written constitution, then it may become difficult to see what could be left as
‘invisible’. They observe that in countries like New Zealand ‘something more
will generally be required for unwritten or extra-textual sources to be truly
“hidden” in nature: such influences must be so deep, strategic, or implicit . . .
to make them non-observable to ordinary constitutional actors’.
14
It might be that the ‘invisible constitution’ comprises the multifarious
factors that
can influence or determine the visible constitution; once such a
factor does influence or determine the content of the visible constitution then
it too is rendered visible. In this chapter, I attempt to highlight the ways that
interim constitutions respond to and create invisible constitutional features
that can determine the form and content of both the visible (or textual) consti-
tution and the invisible constitution.
11
Discussed in Gardner, Supra note 8, 173–5.
12
Dixon and Stone, Supra note 7, 3.
13
I am grateful here for the comments of Dr Lael K. Weiss at The Invisible Constitution: Compar-
ative Perspectives Roundtable (hosted by the International Association of Constitutional Law,
Melbourne Law School, 2–3 May 2016).
14
Dixon and Stone, Supra note 7, 3.
Interim Constitutions and the Invisible Constitution
173
6.2.2. Defining the Interim Constitution
The idea of a constitution as ordinarily being a permanent document appears
as early as in Aristotle’s Politics, and is evident in the debates surrounding
the adoption of the oldest extant constitution, in the USA. Alexander
Hamilton argued that ‘Constitutions should consist only of general
provisions: the reason is, that they must necessarily be permanent,
and that they cannot calculate for the possible change of things’.
15
Arguing
against the prevailing understanding of constitutions as permanent texts,
Thomas Jefferson contended that every nineteen years, each generation
should rewrite a nation’s constitution, deriding those who ‘look at constitutions
with sanctimonious reverence, and deem them like the ark of the covenant,
too sacred to be touched’.
16
On the basis of their comparative constitutional
analysis, Elkins, Ginsburg and Melton observe that nineteen years is the
average life expectancy of a national constitution, demonstrating that regard-
less of the intention of permanency most constitutions are short-lived in
duration.
17
Moving beyond the theoretical, what is meant by the claim that consti-
tutions are intended to last permanently or indefinitely? Classical constitu-
tions do not, after all, typically expressly state that they are intended to be
permanent.
18
Rather, to describe ordinary constitutions as being permanent or
indefinite is to say that their founders envision,
ceteris paribus, that they will
continue as enacted, unless disrupted by an extra-legal force; no legitimate
means is established by or implied in the constitution of effecting wholesale
constitutional replacement. Additionally, a number of interim constitutions
refer to permanent
19
or final
20
constitutions, signalling the intent that their
successor documents be permanent or indefinite in duration. Other interim
constitutions simply refer to the adoption ‘of the Constitution’
21
or ‘of the new
15
Alexander Hamilton, in Jonathan Elliot (ed.) The Debates in the Several State Conventions
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