the detail of non-centralisation, the inclusion or omission of particular rights,
constitutional architecture, and the nuance of text.
(^66) The protection of language
rights in Canada,^67 the right to secede in Ethiopia,^68 the centrality of dignity in
Germany,^69 the particular conception of secularism in India,^70 and the role of the
referendum in Switzerland^71 are merely some of the more obvious examples.
The expressivist function of a constitution may be more significant in some states
than in others in which, for example, social cohesion is a given, the constitution is
overshadowed by other norms of a cultural kind^72 or the circumstances were such
that little thought was given to the symbolic potential of the constitution at the time
it was made. However phlegmatic an instrument appears, however, a degree of
expressivism is likely to be latent and in any event to emerge over time, if the
constitution endures.
Third, the expressivist message of a constitution is not static. There may be a
contested understanding of it at any particular point in time, within the polity itself.
The debate in Japan over the significance of Article 9 is a case in point.
73
In any
event, understanding is likely to evolve over time, with changes in the context in
which the constitution operates. By way of example, the theory of transitional
constitutionalism developed by Yeh and Chang assumes a change in self-
understanding of a kind in which the constitution necessarily plays a role.
74
In a
different vein, the self-understanding of the Australian polity, as reflected in the
virtually unamended national constitution, has changed over a hundred-year
period from that of a union of states to that of a single people governed under
federal arrangements.^75 It may be that the expressivist understanding of many
constitutions now involves the perception of the polity as a member of a supra-
national or the international community, as both contribution and response to the
processes of internationalisation.^76 Even so, however, it constitutes only part of
the picture, which for the moment does not dominate the rest.
(^66) Frankenberg, ‘Comparing constitutions’, 456 – 8.
(^67) Constitution Act 1867 ,s 133 ; Canadian Charter of Rights and Freedoms 1982 ,ss 16 – 23.
(^68) Constitution of the Federal Democratic Republic of Ethiopia 1995 , Art. 39.
(^69) Basic Law for the Federal Republic of Germany 1949 , Art. 1.
(^70) Vijayashri Sripati, ‘Toward fifty years of constitutionalism and fundamental rights in India:
looking back to see ahead ( 1950 – 2000 )’ ( 1998 ) 14 American University International Law
Review 413 at 425 – 7.
(^71) Federal Constitution of the Swiss Confederation, Arts. 138 – 42.
(^72) See in this volume (Chapter 10 ) the discussion of the constitution of Thailand by Kevin Tan.
(^73) See Sakaguchi, ‘Major constitutional developments in Japan in the first decade of the
twenty-first century’,Chapter 3 of this volume.
(^74) Jiunn-Rong Yeh and Wen-Chen Chang, ‘The changing landscapes of modern constitu-
tionalism: transitional perspective’ ( 2009 ) 4 National Taiwan University Law Review 145 at
165 – 6.
(^75) Victoriav.Commonwealth( 1971 ) 122 CLR 353 , 396 (Windeyer J).
(^76) Albert Chen argues that this is the case in Hong Kong: ‘International human rights law and
domestic constitutional law’, 271 – 4.