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Caitlin Goss
concluding section, I reflect upon what this analysis tells us about the nature
of interim constitutions and about the concept of the ‘invisible constitution’.
6.2. Defining Terms
6.2.1. Defining the Constitution: Visible and Invisible
The definition of the invisible constitution depends upon the already vexed
question of defining the visible constitution. In turn, the definition of the visible
constitution is interconnected with deep questions about how to define constitu-
tions and how to interpret constitutions. The definition of such terms is far beyond
the scope of this chapter; I do however attempt to raise a series of questions and to
advance some thoughts about possible ways of approaching these terms.
In The Invisible Constitution, Laurence Tribe describes the ‘visible’
Constitution as ‘the Constitution’s text’; with the associated rules and judicial
interpretation and practices forming the ‘invisible Constitution’.
6
Rosalind
Dixon and Adrienne Stone have described this as the ‘extra-constitutional’
understanding of the invisible constitution, where extra-constitutional sources
buttress and expand upon the visible, textual basis of the constitution.
7
The
invisible constitution on this ‘conceptual’ formulation might include,
depend-
ing on where one draws the boundaries, judicial decisions involving constitu-
tional interpretation, texts of constitutional or quasi-constitutional status and/
or unarguable constitutional facts or conventions. As Dixon and Stone have
observed, the way that one approaches or defines the invisible constitution
will be deeply connected to foundational questions about the proper methods
of judicial interpretation of constitutional texts.
Another approach that falls within this conceptual understanding of the
invisible constitution is that adopted by Chief Justice Sólyom of the Hungarian
Constitutional Court, in a series of decisions in the 1990s. This approach (dis-
cussed in Section
6.2.2
) posits a kind of ideal or true invisible constitution,
which reflects ongoing constitutional values, regardless of the actual text of
the constitution.
The second way of conceiving of the invisible constitution is to adopt a more
sociological or empirical approach, in which the invisible constitution might
be comprised of those things that, without legal status, affect and determine
6
Laurence H. Tribe, The Invisible Constitution (Oxford: Oxford University Press, 2008), 2.
7
Rosalind Dixon and Adrienne Stone (eds.) The Invisible Constitution in Comparative Perspec-
tive (Cambridge: Cambridge University Press, 2017), 1.
Interim Constitutions and the Invisible Constitution
171
constitutional development. This process is observable through a close study
of the working of interim constitutional texts. A study of interim constitutions
reveals that they are adopted as deliberately temporary texts, but often have
through a variety of invisible means, permanent effects on their successor con-
stitutions and on the long-term development of constitutional law and culture
in their jurisdictions. This is the result of both deliberate decision-making and
of unintentional, path-dependent consequences.
The precise definition of – and the relationship between – these two sets of
approaches is beyond the scope of this chapter. However, I suspect that the
two approaches are closely interrelated, and may even be interdependent in
some ways. In order to demonstrate this, I will briefly discuss John Gardner’s
work on a related question.
In his article ‘Can There Be a Written Constitution?’, John Gardner
observes that the Constitution of the United Kingdom contains ‘no procedure
for its own deliberate amendment . . . [and] what determines the status of cer-
tain law as constitution is its reception into constitutional law by certain law-
applying officials, principally the Courts’.
8
As Gardner contends, this may be
true for every legal system; that ‘its so-called written parts are only parts of it
because of their reception into the unwritten law that is made by the customs
and decisions of the courts’.
9
The ‘heretical’ view he ultimately advances is
that constitutions ‘cannot be, or be contained in, documents’.
10
There are two
aspects to his argument: first, the constitution of a
nation is not exhausted by
its text. This much seems uncontroversial, and it reflects Dixon and Stone’s
observation that unwritten aspects of constitutions can nonetheless be highly
‘visible’. But the ‘heretical’ aspect of his argument is that even provisions that
are constitutionally enshrined are not truly constitutional unless they have
been recognised as such by ‘customs and . . . courts’. He provides the example
of a provision in Article V of the United States Constitution (which appears
to allow for the 1787 Constitutional Convention) that has never been used,
or adjudicated upon; he argues that its status is uncertain, even though it
has never been formally revoked. The degree to which this part of the
Constitution remains constitutional depends upon its reception and treatment
as such.
8
John Gardner, ‘Can There Be a Written Constitution?’ in Leslie Green and Brian Leiter (eds.)
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