The Invisible Constitution in Comparative Perspective

19.2.2.  Methodology: Critical, Hierarchical, Aristocratic

The lack of a new constitution increased the responsibilities of the 

Constitutional Court as the ultimate interpreter of constitutional principles 

and fundamental rights, and the most crucial constitutional check on the 

powers of Parliament. Importantly, the famous metaphor of the invisible con-

stitution was applied not only to developing the underlying principles that 

articulate and justify the text of the constitution, as advised by the Dworkinian 

moral reading, but also to critically revising the text of the Constitution by 

invoking the idea of constitutionalism.

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According to the statement on the invisible constitution, the amendments 

to the text of the 1989 Constitution were a matter of “current political inter-

ests,” while the invisible constitution was above and beyond the text, and the 

only limit on the Court’s activity was the framework of constitutionalism. In 

this way, disrespecting the constitutional text, the Court might ground some 

of its decisions on the invisible constitution rather than on the written one.  

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B. Bugari

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  and T. Ginsburg, “The Assault on Postcommunist Courts” (2016) 27 Journal of 

Democracy 69.

27 

J. Kis, Constitutional Democracy (Budapest: Central European University Press, 2003), 253–9.

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550 

Gábor Attila Tóth

In short, the doctrine was understood as a tool for implicitly amending the 

text of the constitution in the name of constitutional ideas, as happened in the 

Capital Punishment Case: the reasoning implied that the Court opposed the 

text of the Article 54(1) that prohibited the “arbitrary deprivation” of one’s life 

and dignity, and logically, did not exclude the possibility that someone may be 

deprived of life and human dignity in a nonarbitrary way. The Court deduced, 

however, that any deprivation of them was conceptually “arbitrary.”

This is a clear departure from a moral reading that also presupposes that the 

bases of the constitutional norms are moral principles that justify them. In this 

respect the Dworkinian approach is in line with the famous phrase from Chief 

Justice Marshall that it must never be forgotten that it is the Constitution that 

judges are expounding.

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 It is hard to imagine a constructive and coherent 

application of the constitution without commitment to principles and rules of 

the visible constitutional text.

A further attribute of the invisible constitution doctrine is its hierarchical 

nature, with an aristocratic flavor. The centralized model of constitutional 

adjudication, the separation from the ordinary court system, and the erga 

omnes constitutional interpretative authority can certainly be associated with 

hierarchy. Similarly to the Kelsenian hierarchy of legal norms, with the con-

stitution at its peak, in the field of institutions the constitutional court is the 

highest in rank. However, the concurring opinion of the Chief Justice named –  

or perhaps better to say degraded – the Parliament, the constitution-making 

authority, as being motivated by actual political interests. Thus, not only 

direct, popular forms of democratic decision-making, but also indirect, repre-

sentative forms were regarded with ambiguity. Sólyom himself believed that 

the symbolic completion of the democratic transition with a brand new con-

stitution was unnecessary because the Court, as the highest-ranking constitu-

tional body, could replace the constitution-making authority by its principled 

judgments.

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As regards the legitimacy of this kind of judicial attitude, many advocates of 

a powerful constitutional court engaged in endless debates with those schol-

ars, e.g., Bruce Ackerman, who were doubtful about the initial achievements 

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