The Invisible Constitution in Comparative Perspective

osophical Foundations of Constitutional Law (Oxford: Oxford University Press, 2016) 95–118.

35 

Dixon, Supra note 21, 193.

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20 

Rosalind Dixon and Adrienne Stone

in Israel as a potential objection to the judicial development of unwritten 

constitutional understandings in Israel. Schneiderman also notes the degree 

to which in Canada, many scholars might regard the ‘age, rigidity or prolixity 

of the Constitution’ as factors influencing the degree to which the Supreme 

Court of Canada has tended to rely on unwritten constitutional principles.

Similarly, the task of comparing the content of invisible constitutions across 

different countries itself invites attention to the way in which constitutions 

may serve as extra-textual constitutional influences across borders: one con-

stitution’s written or unwritten constitution may be an important extra-textual 

influence on the interpretation of another country’s written constitution, in 

ways that create a complex interaction of visible and invisible comparative 

constitutional engagement. This form of comparative influence may also be 

more or less apparent, or hidden, to informed observers in a particular coun-

try: in some countries, comparative influence is routinely accompanied by 

explicit citation to foreign judgments and practices, whereas in others (par-

ticularly those within or influenced by the civilian tradition) comparative 

influence is more unstated or implicit. In that sense, it may also be more 

hidden, absent informed and careful scholarship designed to uncover these 

previously hidden comparative or transnational influences.

Various contributors to the volume at times acknowledge the importance 

of these questions: Chen and Lo, for instance, note the importance of com-

parative and international law as an influence on the drafting of the Hong 

Kong Basic Law, in shaping the approach of the CFA in various contexts, and 

the role of foreign judges in shaping the CFA’s jurisprudence and thus also 

as an important factor explaining the quite different experience of Macau, 

which has operated in the shadow of a far weaker, less direct form of com-

parative constitutional influence. Again, however, few contributors begin to 

address the idea of a set of invisible transnational constitutional influences, or 

how we might best understand both the visible and invisible traffic in ideas –  

themselves both textual and extra-textual – across borders.

One of the hallmarks of a great academic conversation is that it often raises 

as many important questions as it answers, and by that criterion we know that 

you will join us in judging this collection a great success. We also hope that 

others in the future will take up the challenge laid out in this section and help 

further broaden our understanding of the invisible constitution in compara-

tive perspective.

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21

It was 1964. I was in my second year of law school when Simon and Garfunkel 

released the early version of their first and maybe greatest musical master-

piece, “The Sounds of Silence,” a commercial failure that temporarily broke 

the duo apart until the piece was remixed in 1965 and re-released in 1966.

1

 As 

revised, it has had a lasting legacy as art. And it quickly became my favorite 

song from the 1960s. As the song’s own lyrics put it,

a vision softly creeping

Left its seeds while I was sleeping

And the vision that was planted in my brain

Still remains

Within the sound of silence.

2

 

I still recall how those lyrics echoed in my mind during a class I was taking 

in the fall of 1965 called Advanced Constitutional Law taught by the former 

Solicitor General and Watergate Special Prosecutor, Professor Archibald 

Cox. The professor came into the classroom carrying the slip opinion the 

Supreme Court had released that June in the now-famous case of Griswold v.