Multi-Textual Constitutions

Abstract

We have long been taught that constitutions are either “written” or “unwritten.” But this binary classification is both incorrect and misleading. It is incorrect because all constitutions are composed of written texts, and it is misleading because 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.

In this Article, I offer the first comprehensive introduction to multi-textuality. I draw from current and historical constitutions in Africa, America, 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 dominant 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.

Keywords: Written Constitutions, Unwritten Constitutions, Constitutional Codification, U.S. Constitution, Constitutional Veneration, Constitutional Obsolescence, Canadian Constitution, Constitution of Israel, Incremental Constitutionalism, Constitutional Transition, Constitutional Amendment