The Invisible Constitution in Comparative Perspective

Schwarzschild (London: Routledge and Kegan Paul, 1949) 57.

113 

Justice Lebel, who co-wrote the dissent in Quebec v. Canada, is now retired. See discussion of 

his views in Mark Walters, “Federalism in its Biggest Sense: Justice Louis LeBel and the Feder-

al Idea in Canadian Constitutional Law” in Dwight Newman and Malcolm Thorburn (eds.), 

 

The Dignity of Law: The Legacy of Justice Louis LeBel (Markham, ON: Lexis Nexis, 2015).

---

540 

David Schneiderman

role to play, for these reasons, in future constitutional litigation. The worry is 

that it provides easy cover for contestable constitutional maneuvers, imposing 

a rule of political morality where there may be little consensus.

The contestable nature of unwritten principles, I surmise, helps to 

explain the Court’s reluctance to robustly endorse them since the Secession 

Reference. The justices, instead, are aware that there is much work that legal 

federalism can do (as in the Securities Act Reference). The Court can answer 

constitutional questions with some jurisprudential specificity using more con-

ventional resources.

When it departs from its more traditional methods and refers to unwritten 

principles, this signals the Court is being attentive to the institutional con-

text in which it operates. Though this context will be present in many cases, 

overt departures from conventional legal methods entail risks for the Court. 

Presumably, the justices will embark on such a course only when other tradi-

tional legal methods fail to generate reasons consistent with their preferred out-

comes. With its reputation hanging in the balance, the members of the Court 

were willing to take such a risk in the high stakes Secession Reference so as to 

generate an unwritten constitutional duty to negotiate. No such reputational 

risk was at play in Quebec v. Canada, and so nothing more was required. The 

majority of the justices could proceed along a more conventional path even 

though the outcome threatened to unleash a backlash, of a sort, from Quebec 

elite opinion. Then again, that opinion could have been attentive to the fact 

that an unwritten principle of federal loyalty worked in both directions – that 

it could hamper the Quebec National Assembly should it disrespect its federal 

partner sometime in the future. Sticking to conventional judicial methods 

turns out to have been the shrewder, and more cautious, course of action. 

Canada’s unwritten constitution could safely be cabined until the next occa-

sion when members of the Court need to get creative.

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541

In its first landmark judgment, in 1990, the Constitutional Court of Hungary 

abolished the death penalty.

1

 The interpretation on human dignity, both a 

moral value and a constitutional right, served as an example for the Ukrainian, 

Lithuanian, Albanian, and South African constitutional courts.

2

 But this is not 

the only reason why the judgment has been echoed in a number of studies 

and judgments. Chief Justice Sólyom expressed in obiter dicta that he was 

applying the invisible constitution:

The Constitutional Court must continue its effort to explain the theoret-

ical bases of the Constitution and the rights included in it and to form a 

coherent system with its decisions in order to provide a reliable standard of  

constitutionality – an “invisible Constitution” – beyond the Constitution, 

which is often amended nowadays by current political interests; and 

because of this “invisible Constitution” probably will not conflict with 

the new Constitution to be established or with future Constitutions. The 

Constitutional Court enjoys freedom in this process as long as it remains 

within the framework of the concept of constitutionality.

3

On the face of it, the early message about the Hungarian variety of invis-

ible constitution may appear to correspond to the renowned concept from 

Laurence Tribe. The fact is, however, that this innovation did not exert influ-

ence on Tribe’s book in any way. Indeed, the notion of the invisible consti-

tution has never been adopted explicitly per curiam in Hungary. In spite of 

1 

Judgment 23/1990 (X. 31.) HCC.

2