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Rosalind Dixon and Adrienne Stone
broader sense. Goldsworthy argues that written constitutions should be inter-
preted by reference to both the original public meaning of the text and a
principle or presumption of expressio unius – i.e., a principle that no other
norms are to be inferred under the constitution that do not find express textual
recognition in the text of the constitution. This means that all freestanding or
‘fabricated’ implications must in some way be logically necessary to give effect
to the text of the constitution itself, not simply practically useful or conducive
to the effective operation of the structures created by the text. Solum takes
a similar view, and endorses implications that are logically necessary to the
text, as consistent with an originalist methodology. But he also goes somewhat
further than Goldsworthy, in allowing for the possibility of legitimate forms of
implication as part of the process of constructional choice. From an originalist
standpoint, he suggests, even reference to contemporary extra-constitutional
sources may be legitimate in contexts where the original communicative
meaning of the constitution is indeterminate or where the text ‘underdeter-
mines the content of constitutional law’. Extra-territorial influences of this
kind may be unbounded by the text of the constitution, but it may still be
sufficiently consistent with the text to be accepted by many originalists.
In a Korean context, Kim provides a more outcome-specific critique of the
reliance by the Constitutional Court of Korea (KCC) on the notion of an
invisible or ‘customary’ constitution.
22
The KCC, in the Capital Relocation
Case, held that the longstanding status of Seoul as the national capital cre-
ated a ‘customary’ constitutional norm regarding the capital’s location
which could only be altered by way of a national referendum.
23
This, Kim
argues, was also problematic in a number of respects: it involved the KCC
intervening in a highly contentious political case or entering the ‘political
thicket’ without clear textual or other justification and in ways that argua-
bly impeded rather than advanced the cause of democratic reform in Korea.
Further, in relying on such a principle, Kim argues that the KCC did not
articulate a persuasive account of what kinds of practices were sufficient to
create a customary constitutional norm of this kind or of why it was appro-
priate to treat informal customary constitutional norms as fully equivalent
to formally entrenched, written norms for the purposes of processes of con-
stitutional change. In other cases, in contrast, Kim argues that reliance by
the KCC on extra-textual constitutional sources arguably helped advance
democracy: it allowed the KCC to avoid the threat to democracy posed by
22
Kim (Chapter
11
) at 15–24.
23
Case NO.: 2004Hun-Ma554, KCCR : 16-2(B) KCCR 1,
http://english.ccourt.go.kr/cckhome/
eng/decisions/social/socialDetail.do
The Invisible Constitution in Comparative Perspective
13
the potential impeachment of President Roh
24
and to increase pressure on the
electoral system to give greater respect to principles of one person, one vote
or equality of voting power.
25
In the Indonesian context, Butt (Chapter
10
)
offers a more modest normative critique of the Indonesian Court’s approach
to constitutional implications. He criticises the reasoning of the Indonesian
Constitutional Court in its series of decisions implying various criminal due
process rights as implicit in the concept of ‘Negara Hokum’ (rule of law) found
in the founding values of the Constitution. He suggests that norms of trans-
parency and public reason-giving are important requirements of judicial legit-
imacy in all cases, but particularly strong demands on courts in an Indonesian
context: he notes the long history of deliberate ideological manipulation of
the idea of ‘Negara Hokum’ in Indonesia and the argument this provides for
a more principled, non-ideological elaboration of the ideal by the current
court. He also notes the pervasive history of judicial corruption which argua-
bly places the onus on the court to articulate a principled justification for its
decisions in ways that rebut any appearance of corruption as an influence on
constitutional decision-making.
Conversely, other contributors offer a partial or qualified normative
defence of aspects of extra-textual constitutional influence on practices of
constitutional decision-making or practice in various jurisdictions. Spigno,
for example, defends the practice of reading-in or ‘additive judgments’ in the
jurisprudence of the Italian Constitutional Court as normatively legitimate,
based on the indirect textual authorisation for such a practice in the guaran-
tee of equality in Art 3 of the Italian Constitution and limits she identifies as
implicit in the actual practice or implementation of the doctrine – i.e., the
unwillingness of the court to deploy the doctrine where there are multiple
different ways of remedying a constitutional equality violation, where it would
be contrary to the relevant legislative purpose or context (or what she describes
as certain set legislative ‘rhymes’) or where it is inconsistent with the relevant
subject-matter (e.g., the criminal nature of proceedings).
Carolan, in turn, defends the relationship between the visible and invis-
ible constitution in Ireland as a valuable source of constitutional stability:
‘connecting the Constitution to broad normative principles, the content of
which are not made explicit’, Carolan argues, ‘provides a means of publicly
declaring the systems goodness will nonetheless preserving a politically nec-
essary space for moral contestation’. Where the Constitution was originally a
quite direct bridge between natural law ideas about compassion and charity,
24
Kim (Chapter
11
) at 25–30.
25
Kim (Chapter
11
) at 30–4.
14
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