(Re)Inventing Constitutional Concepts

The study and practice of constitutional law, as that of any area of law, often involves the invention of concepts. Scholars may identify similar constitutional practices present in different jurisdictions and capture them through an idea (e.g., constitutional dialogue, weak judicial review, etc.) that can later be applied to other cases. Judges may develop sets of rules or legal tests that come to be identified with a particular notion (e.g., sustitución de la constitución, margin of appreciation, etc). This chapter will focus on situations where the relevant concept or closely related ideas has already been invented or developed, sometimes decades or even centuries earlier, but remain inaccessible to the scholar or judge at hand, at least partly, because of a language barrier. When that happens, we remain unaware of the similarities (and differences) in the ways different jurisdictions and traditions of thought conceived constitutional practices and institutions that are still with us. This chapter examines two main examples of this problem. First, in Part II, I consider the concept of quasi-constitutional amendments and the small-c/large-c constitution distinction (and other variations of the same notion). These are, respectively, re-inventions of the concept of constitutional mutation and of the distinction between the material and the formal constitution. A more complex example, to be considered in Part III of the chapter, is the basic structure doctrine and its relationship with the 19th century concepts of the internal and the historical constitution.