Multi-Textual Constitutions

*William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional Studies, The University of Texas at Austin. I thank audiences at Airlangga University (Indonesia); Escuela Libre de Derecho (Mexico); Externado University (Colombia); FGV Direito SP (Brazil); Maharashtra National Law University Mumbai (India); New York Law School; Sapir College (Israel); Texas A&M University; Titu Maiorescu University (Romania); Touro Law School; Universidad Femenina del Sagrado Corazón (Peru); Universidad Monteávila (Venezuela); Universidad de Especialidades Espíritu Santo (Ecuador); Universidade Católica Portuguesa (Portugal); Universidade Federal de Minas Gerais (Brazil); Université Paris-Panthéon-Assas (France); University of Alberta (Canada); University of California, Irvine; City, University of London (United Kingdom); University of Maryland; University of Ottawa (Canada); University of Tehran (Iran); the University of Texas at Austin; and Victoria University of Wellington (New Zealand) for helpful feedback on the ideas developed in this Article. My thanks also to David Anders, Biruktawit Assefa, Sydney Eisenberg, Haley Gorman, Hunter Heck, Valerie Listorti, Casey Schmidt, Mary Triplett, Hana Verwilt, and the editors of the Virginia Law Review for their excellent editorial assistance.Show More

We have long been taught that constitutions are either “written” or “unwritten.” But this binary classification is wrong. All constitutions are in some way written, and all constitutions contain unwritten rules. This false distinction moreover overlooks the most important formal difference among the constitutions of the world: some constitutions consist of a single, supreme document of higher law while others consist of multiple documents, each enacted separately with shared supremacy under law. Ubiquitous but so far unnoticed, these constitutions comprising multiple texts are a unique constitutional form that has yet to be studied and theorized. I call them multi-textual constitutions.

This Article is the first on multi-textuality as a constitutional form. I draw from current and historical constitutions in Africa, the Americas, Asia, Europe, and Oceania to explain, illustrate, and theorize the design and operation of multi-textual constitutions. I examine their origins, compare how they perform relative to the alternative uni-textual constitutional form, and outline a research agenda for further study. What results is a reordering of our basic constitutional categories, a deep analytical dive into a distinct constitutional form, and a disruptive revelation about the United States Constitution, the world’s paradigmatic model of a uni-textual constitution.

Introduction: Beyond Written and Unwritten Constitutions

For generations, the study of constitutional law has begun with a standard distinction: some constitutions are “written” while others are “unwritten.”¹ 1.See Michael Foley, The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government 3 (1989) (“One of the most traditional points of departure in the study of constitutions has been to classify them according to whether they are ‘written’ or ‘unwritten.’”); Andrew Heywood, Politics 293 (2d ed. 2002) (“Traditionally, considerable emphasis has been placed on the distinction between written and unwritten constitutions.”); Herbert W. Horwill, The Usages of the American Constitution 1 (1925) (“Once upon a time some unknown humorist divided constitutions into written and unwritten, and since then text-book after text-book has taken his classification seriously. The American Constitution, we are told, is an example of the former class and the English of the latter.”); see also A.V. Dicey, Introduction to the Study of the Law of the Constitution 3–6 (3d ed. 1889) (distinguishing written and unwritten constitutions on several grounds, including how to locate them and how to identify their constitutive rules); Paul Craig, Written and Unwritten Constitutions: The Modality of Change, in Pragmatism, Principle, and Power inCommon Law Constitutional Systems 263, 263 (Sam Bookman, Edward Willis, Hanna Wilberg & Max Harris eds., 2022) (describing written constitutions as “the norm” and unwritten constitutions as “the rare exception”); James Allan, Against Written Constitutionalism, 14 Otago L. Rev. 191, 191–93 (2015) (observing that “[m]ost of the democratic world has some sort of written constitution” while at most three democracies have an “unwritten constitution,” namely Israel, New Zealand, and the United Kingdom).Show More According to this traditional contrast, written constitutions exist on parchment in documentary form, while unwritten constitutions are intangible sets of invisible rules consisting of norms, principles, and practices that sustain the constitutional order without entrenchment in written word.² 2.See, e.g., W.J. Cocker, The Government of the United States 55 (1889) (“Constitutions are either written or unwritten. A written constitution is a body of laws, contained in a written document, under which the government is conducted. The Constitution of the United States is an example. . . . An unwritten constitution is one having no definite form. The English constitution is an example.”); Lucius Hudson Holt, The Elementary Principles of Modern Government 26 (1923) (“A constitution may be written or unwritten. It may be a single document, like the constitution of the United States, or it may be a combination of legal precedent, individual bills and grants, and immemorial customs, like the constitution of England.”); John Alexander Jameson, A Treatise on Constitutional Conventions; Their History, Powers, and Modes of Proceeding 77 (4th ed. 1887) (“An unwritten Constitution is made up largely of customs and judicial decisions, the former more or less evanescent and intangible . . . . Not so with written Constitutions.”); Emlin McClain, Constitutional Law in the United States 11 (1905) (“If the body of rules and principles is not reduced to definite and authoritatively written form, the constitution is said to be unwritten, as in the familiar case of Great Britain.”).Show More This foundational distinction has been the basic building block in constitutional studies. But it is both incorrect and misleading.

The distinction between written and unwritten constitutions is incorrect because all constitutions are in some way written. Even parts of the paradigmatically “unwritten” Constitution of the United Kingdom are written somewhere, namely in statutes that are endowed with constitutional status,³ 3.SeeThoburn v. Sunderland City Council [2002] EWHC (Admin) 195 [62], [2003] QB 151 (Eng.) (enumerating statutes that have constitutional status).Show More for instance the Magna Carta,⁴ 4.Magna Carta 1297, 25 Edw. 1 c. 9 (Eng.).Show More the Bill of Rights,⁵ 5.Bill of Rights 1688, 1 W. & M. c. 2 (Eng.).Show More and the Human Rights Act.⁶ 6.Human Rights Act 1998, c. 42 (UK).Show More It is more accurate to describe an “unwritten” constitution as partly codified and partly uncodified, since many of its constitutional norms appear in official texts.

The familiar distinction between written and unwritten constitutions is moreover misleading because all constitutions contain unwritten rules. No constitution is ever fully written, and one might well wonder whether it is possible for a constitution to be set out entirely in documentary form.⁷ 7.See John Gardner, Can There Be a Written Constitution?, in 1 Oxford Studies in Philosophy of Law 162, 188–92 (Leslie Green & Brian Leiter eds., 2011).Show More Even the United States Constitution—the archetypical “written” constitution—consists of “a constitution outside the constitution,”⁸ 8.See Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 410–14 (2007).Show More a common reference to the extra-canonical norms, practices, relationships, and institutions that form part of the constitution beyond its text. Scholars have properly recognized that the U.S. Constitution is comprised of various “invisible”⁹ 9.Laurence H. Tribe, The Invisible Constitution 25–27 (2008). Similar themes appear in relation to works on the “unwritten” Constitution of the United States. SeeAkhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–x (2012); Don K. Price, America’s Unwritten Constitution: Science, Religion, and Political Responsibility 9 (1983).Show More elements, and they have even inquired whether and how it might be possible to amend America’s unwritten constitution.¹⁰ 10.See Richard Albert, Ryan C. Williams & Yaniv Roznai, Introduction: A Return to Constitutional Basics: Amendment, Constitution, and Writtenness, in Amending America’s Unwritten Constitution 1, 14–16 (Richard Albert, Ryan C. Williams & Yaniv Roznai eds., 2022).Show More

This false distinction between written and unwritten constitutions comes at a great cost. It overlooks and obscures the most important formal distinction among the constitutions of the world: some constitutions consist of a single, supreme document of higher law while others consist of multiple documents, each enacted separately with shared supremacy under law. In jurisdictions governed by more than one document of higher law, the constitution is composed of more than one self-standing text of equal legal force, and together those texts are regarded jointly as the supreme law of the land.¹¹ 11.In this Article, I focus only on multi-textual national constitutions, but multi-textual constitutions exist also at the subnational and supranational levels.Show More The documents comprising these constitutions are enacted separately in a variety of forms, for instance, as founding constitutional texts, organic laws endowed with constitution-level status, and constitutional amendments promulgated as separate documents.

Ubiquitous yet so far unidentified, this constitutional form defies our conventional understanding of “written” constitutions. Rather than one official text, there are many, and no single text prevails over another because all are considered equal. These constitutions are therefore unlike uni-textual constitutions whose written elements appear in a single document that is treated as the only supreme law of the land. I call them multi-textual constitutions. Multi-textual constitutions differ from single-text constitutions on the major markers of constitutional life: their initial design, their ongoing evolution, their authoritative interpretation, and their formal amendment. Multi-textual constitutions moreover raise intriguing possibilities for governance in relation to democracy, human rights, and the rule of law that set them apart from what is regarded as the world’s dominant model of uni-textual constitutions.¹² 12.SeeDenis J. Galligan & Mila Versteeg, Theoretical Perspectives on the Social and Political Foundations of Constitutions, in Social and Political Foundations of Constitutions 3, 6 (Denis J. Galligan & Mila Versteeg eds., 2013) (observing that “the standard practice across the nations of the world, with just a few exceptions, is to have a single written constitutional document”).Show More

There are advantages to introducing “multi-textual constitutions” as a term and category in the field of public law generally and constitutional studies specifically. Using “multi-textual” as a new term to identify this unique classification of constitutions brings a much-needed correction to the mistaken identification of constitutions as “unwritten.” In addition, using “multi-textual” as a new category for constitutions distinguishes them in both form and function from the alternative uni-textual model.

Scholars have yet to identify, explain, and theorize multi-textuality as a distinctive constitutional form despite its prevalence in every region of the world, across all legal traditions, and in all types of constitutional states no matter their age. My purpose in this Article is to introduce, illustrate, and theorize multi-textuality with reference to current and historical constitutions, and to show how this ubiquitous constitutional form disrupts much of what we know about constitutions, including the U.S. Constitution. The great revelation is that the U.S. Constitution consists of multiple documents of higher law, each equally supreme in the constitutional order. Yet, as I will show, although the U.S. Constitution satisfies the trio of legal criteria to be defined in form and operation as multi-textual, it fails the sociological test of public recognition as multi-textual because it is perceived in law and society as uni-textual.

I begin, in Part I, by showing the remarkable omnipresence of multi-textual constitutions in the world. I draw from many constitutional traditions to show the prevalence of multi-textuality in countries rooted in civil and common law traditions, with parliamentary and presidential systems, and in the Global North and South. I furthermore show that multi-textual constitutions are created in one of two ways: either by express design or by unplanned evolution. In Part II, I identify problems created by multi-textual constitutions in connection with three basic questions that are not ordinarily asked of uni-textual constitutions: (1) what is the constitution?, (2) where is the constitution?, and (3) when does a set of legal rules becomes constitutional? Part III then turns to the potential promise of multi-textuality. I highlight three areas of strength for multi-textual constitutions: (1) they make possible incremental constitutional development as a constitutional state begins the transition from one regime to another; (2) they make available multiple options for constitutional reform and may therefore offer more flexibility in managing changes to higher law; and (3) they may help forestall the rise of a popular obsession with the constitution, what scholars have diagnosed as “veneration,” a problematic phenomenon traceable to James Madison,¹³ 13.See The Federalist No. 49, at 340 (James Madison) (Jacob E. Cooke ed., 1961).Show More one of the authors of the U.S. Constitution. I close with a research agenda for future study to enhance our understanding of both uni-textual and multi-textual constitutions.

1.  See Michael Foley, The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government 3 (1989) (“One of the most traditional points of departure in the study of constitutions has been to classify them according to whether they are ‘written’ or ‘unwritten.’”); Andrew Heywood, Politics 293 (2d ed. 2002) (“Traditionally, considerable emphasis has been placed on the distinction between written and unwritten constitutions.”); Herbert W. Horwill, The Usages of the American Constitution 1 (1925) (“Once upon a time some unknown humorist divided constitutions into written and unwritten, and since then text-book after text-book has taken his classification seriously. The American Constitution, we are told, is an example of the former class and the English of the latter.”); see also A.V. Dicey, Introduction to the Study of the Law of the Constitution 3–6 (3d ed. 1889) (distinguishing written and unwritten constitutions on several grounds, including how to locate them and how to identify their constitutive rules); Paul Craig, Written and Unwritten Constitutions: The Modality of Change, in Pragmatism, Principle, and Power in Common Law Constitutional Systems 263, 263 (Sam Bookman, Edward Willis, Hanna Wilberg & Max Harris eds., 2022) (describing written constitutions as “the norm” and unwritten constitutions as “the rare exception”); James Allan, Against Written Constitutionalism, 14 Otago L. Rev. 191, 191–93 (2015) (observing that “[m]ost of the democratic world has some sort of written constitution” while at most three democracies have an “unwritten constitution,” namely Israel, New Zealand, and the United Kingdom). ↑
2.  See, e.g., W.J. Cocker, The Government of the United States 55 (1889) (“Constitutions are either written or unwritten. A written constitution is a body of laws, contained in a written document, under which the government is conducted. The Constitution of the United States is an example. . . . An unwritten constitution is one having no definite form. The English constitution is an example.”); Lucius Hudson Holt, The Elementary Principles of Modern Government 26 (1923) (“A constitution may be written or unwritten. It may be a single document, like the constitution of the United States, or it may be a combination of legal precedent, individual bills and grants, and immemorial customs, like the constitution of England.”); John Alexander Jameson, A Treatise on Constitutional Conventions; Their History, Powers, and Modes of Proceeding 77 (4th ed. 1887) (“An unwritten Constitution is made up largely of customs and judicial decisions, the former more or less evanescent and intangible . . . . Not so with written Constitutions.”); Emlin McClain, Constitutional Law in the United States 11 (1905) (“If the body of rules and principles is not reduced to definite and authoritatively written form, the constitution is said to be unwritten, as in the familiar case of Great Britain.”). ↑
3.  See Thoburn v. Sunderland City Council [2002] EWHC (Admin) 195 [62], [2003] QB 151 (Eng.) (enumerating statutes that have constitutional status). ↑
4.  Magna Carta 1297, 25 Edw. 1 c. 9 (Eng.). ↑
5.  Bill of Rights 1688, 1 W. & M. c. 2 (Eng.). ↑
6.  Human Rights Act 1998, c. 42 (UK). ↑
7.  See John Gardner, Can There Be a Written Constitution?, in 1 Oxford Studies in Philosophy of Law 162, 188–92 (Leslie Green & Brian Leiter eds., 2011). ↑
8.  See Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 410–14 (2007). ↑
9.  Laurence H. Tribe, The Invisible Constitution 25–27 (2008). Similar themes appear in relation to works on the “unwritten” Constitution of the United States. See Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–x (2012); Don K. Price, America’s Unwritten Constitution: Science, Religion, and Political Responsibility 9 (1983). ↑
10.  See Richard Albert, Ryan C. Williams & Yaniv Roznai, Introduction: A Return to Constitutional Basics: Amendment, Constitution, and Writtenness, in Amending America’s Unwritten Constitution 1, 14–16 (Richard Albert, Ryan C. Williams & Yaniv Roznai eds., 2022). ↑
11.  In this Article, I focus only on multi-textual national constitutions, but multi-textual constitutions exist also at the subnational and supranational levels. ↑
12.  See Denis J. Galligan & Mila Versteeg, Theoretical Perspectives on the Social and Political Foundations of Constitutions, in Social and Political Foundations of Constitutions
    

    3, 6 (

    Denis J. Galligan & Mila Versteeg eds.,

    2013) (

    observing that “the standard practice across the nations of the world, with just a few exceptions, is to have a single written constitutional document”). ↑

13.  See The Federalist No. 49, at 340 (James Madison) (Jacob E. Cooke ed., 1961). ↑