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Lawrence B. Solum
may believe that the normative force of historical practice should be assessed
by the political branches, and hence that Congress or the President may
depart from such practices without judicial interference.
3.7. Conclusion: The Case for the Primacy
of the Visible Constitution
From an originalist perspective, we have a visible Constitution – a written text
with communicative content that should constrain constitutional practice.
When we engage in constitutional interpretation, the communicative content
of the written Constitution is the target of our investigation. The meaning of
the written Constitution, however, is not limited to the semantic content of
the words and phrases. The full communicative content of the Constitution
is a function of text and context – and hence of inferences, implicitures, pre-
suppositions, and modulations – that sometimes involve extra-textual sources.
When we engage in constitutional construction, originalism endorses a prin-
ciple of constraint: our constitutional constructions must reflect the commu-
nicative content of the text and may not contradict that content. But when
the communicative content of the constitutional text underdetermines the
content of constitutional doctrine, we are in the construction zone. In that
zone, extra-textual sources necessarily play a role.
From an originalist perspective, constitutional interpretation and construc-
tion necessarily involve extra-textual sources, but only when they are deployed
in a way that is consistent with fidelity to the original public meaning of the
United States Constitution. Originalists affirm the constraining force of the
communicative content of the written Constitution – even when that content
depends in part on context that goes beyond the four corners of the document.
Originalists can affirm the use of extra-constitutional sources that shape con-
stitutional law in the construction zone, where the communicative content of
the text underdetermines the legal content of constitutional law.
These conclusions lead to other important questions. Why should we take
up the originalist perspective? More particularly, why should we affirm the
Constraint Principle? A full answer to these questions is a very large task, but
the basic ideas are familiar and intuitive. Constraint by the constitutional text
serves the rule of law. An invisible constitution is neither public nor transpar-
ent. If the invisible constitution licenses the Supreme Court to override the
constitutional text, the democratic legitimacy of constitutional law is ques-
tionable. Of course, there is much more to be said about these questions: they
implicate the deepest issues of normative constitutional theory. The aim of
this chapter is to clarify the questions. Answers are for another day.
109
4.1. Clarifying and Creative Interpretation
‘Invisible’ constitutional norms deal with constitutional matters – the compo-
sition, powers and procedures of the principal organs of government – but are
not expressly set out in a nation’s written constitution (if it has one).
Many different kinds of norms may do this, including: supposedly funda-
mental, ‘unwritten’ principles argued to be superior to, and control, even the
written constitution itself;
1
non-legal norms of constitutional practice (called
‘constitutional conventions’ in the British tradition);
2
statutory and common
law norms governing the exercise of governmental power and even the inter-
pretation of the written constitution;
3
and norms regarded as implicit in or
implied by the written constitution. This chapter concerns these implicit or
implied norms.
My impression is that implied norms have been attributed, with differ-
ent degrees of plausibility, to virtually all constitutions. Sir Owen Dixon, an
eminent Australian Chief Justice, once dismissed the notion that implica-
tions are illegitimate on the ground that it ‘would defeat the intention of any
1
See the discussion in J. Goldsworthy, ‘Unwritten Constitutional Principles’, in G. Huscroft
(ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge: Cambridge
University Press, 2008), 277.
2
See e.g., Keith E. Whittington, ‘The Status of Unwritten Constitutional Conventions in the
United States’ (2013) University of Illinois Law Review 1847.
3
J. Goldsworthy, ‘The Constitution and Its Common Law Background’ (2014) Public Law Review
265; Stephen E. Sachs, ‘Constitutional Backdrops’ (2012) 80 George Washington Law
Review 1813.
4
The Implicit and the Implied in a Written Constitution
Jeffrey Goldsworthy*
* This chapter includes some passages previously published in J. Goldsworthy, ‘Implications
in Language, Law and the Constitution’, in G. Lindell (ed.), Future Directions in Australian
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