The Invisible Constitution in Comparative Perspective

Baker v. Carr, 369 U.S. 186(1962).

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The “one person, one vote” standard that was first set up at both Baker v. Carr, 369 U.S. 

186(1962) and Reynolds v. Sims, 377 U.S. 533(1964) was recently reconfirmed in Evenwel v. 

Abbott, 578 U.S. – (2016) in which the Supreme Court of the United States rejected a chal-

lenge to the “one person, one vote” rule and allowed the use of total population in drawing 

legislative districts.

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Is the Invisible Constitution Really Invisible? 

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Then, we can ask if these principles and their derivatives which 

 

emerged in the course of constitutional evolution are to be respected just 

because they are expressed in the written constitution, or because they are 

essential to constitutional democracy. If the answer is in the former, the 

appearance of visibility becomes very important, while if it is in the latter,  

the ideal rather than the appearance matters. I believe that the provisions 

declaring the principles of election in the Korean Constitution are basically 

the confirmation of universal principles derived from the ideal of constitutional 

democracy or a democratic republic as Article 1 of the Korean Constitution 

declares.

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 And the step-by-step elaboration made by the KCC, e.g., the  

gradually tightened election disparity, is nothing but an emanation of univer-

sal principles which have been developed to meet the growing demands of  

the sovereign people. I cannot imagine that without equal and universal suf-

frage a civilized country may declare itself a democratic republic. Under this 

constitutionalist or democratic understanding, I do not think that it really 

matters whether we have visible or invisible constitutions covering election 

principles.

Let me finish this section by giving a short assessment of the KCC’s  

performance in these election reapportionment cases. In principle, the KCC 

finally played its constitutionally designated function of implementing visible 

or invisible constitutional principles very well. Thanks to the efforts of the 

KCC to enhance constitutional democracy, the notoriously undemocratic 

election system in Korea had a momentum to be reformed, at least at the 

lowest level.

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 It is hoped that similar efforts on the part of the KCC should be 

38 

It is interesting to see that the Korean Constitution has a specific provision of equality in elec-

tion, while the Supreme Court of the United States articulated rules of electoral equality from 

the general provision of equal protection in the Fourteenth Amendment.

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The Korean electoral system is basically a majoritarian system, because only one-sixth of the 

overall representatives (currently 47 out of 300) are elected by a party list system. This major-

itarian system has been generally accused of producing an “unfair,” distorted representation 

on the ground that it tends to give grossly exaggerated representation to the two major parties 

by simply focusing on who tops the poll and ignoring the size of the majority. The huge 

number of “wasted votes” of ordinary citizens in every constituency in reality results in the 

disenfranchisement of many millions of voters within the country. The major victim of these 

wasted votes is the smaller party whose vote obtained, across the local constituencies, cannot 

be transferred into the seats in the National Assembly. In addition, the Public Officials Elec-

tion Act provides too many regulations on campaigns to be called a free election system. Very 

harsh regulation on political parties is also responsible for a democratic deficit in the political 

system as a whole in Korea. For a general account of political reform in Korea, see Jongcheol 

Kim and Jimoon Lee, “The Necessity and Conditions of a Political Reform for the Republican 

Co-prosperity: Beyond Inconsistent Proposals for Constitutional Revision of the Presidential 

System” [available only in Korean] (2014) 20–1 World Constitutional Law Review 63–92, 77–86.

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