Thursday, 19 May 2011

Writing Constitutions Built to Last: Keeping it Simple

Randolph Sketch of the Constitution for the Committee of Detail, circa July 26, 1787,
credit: Library of Congress manuscript division
By Lorianne Updike Toler

"I didn't have time to write a short letter, so I wrote a long one instead."

Mark Twain implies a truism here which is applicable to Constitutions.

The oldest two operating constitutions in the world are also the shortest - the U.S. (1787) and Norwegian  (1814) constitutions.

If longevity of a constitution is a measure of its success (and I believe it is), does the brevity of a constitution have anything to do with that success?  Again, I believe that it does.

In then-Virginia Governor Edmund Randolph's sketch of the Constitution (probably prepared sitting in camera with the four other Committee of Detail committeemen, tasked with preparing a working draft of the Constitution), he writes:

"In the draught of a fundamental constitution, two things deserve attention:

"1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable; which ought to be accommodated to times and events: and

"2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states."

Shorter is harder.  I learned this (the hard way) by studying at Oxford where, for the first time in my life, I was given a word maximum in addition to a word minimum.  This requires much more.  Each word and phrase had to count, making the entire text much stronger.  Arguments had to be tighter, less art was included, and all superfluidity was excised.  My work was boiled down to its essence and had to bear up under its own weight.

Other short, powerful documents come to mind.  The Gettysburg address in particular, or the Lord's prayer--scriptures in general.  No where else than in the Old Testament (perhaps the Koran?) can so much history be found in so few pages.  Its brevity requires more of the reader.  As Aristotle points out, refraining from making every logical conclusion will strengthen the hearer or reader's participation as they make some of the conclusions themselves.

For a constitution, a supreme law which governs all other laws, all benefits of brevity combine to make a very complicated thing--forming a government--into a simple and strong text.  True, it requires more of those it governs.  They must work to understand its phrases and pass many laws and create institutions which are often only implied.

Constitutional brevity is also a blessing for a litigious society.  Sheets and sheets of constitutional text will increase the opportunity that some clause or other will be violated, multiplying causes of action and clogging the courts.  Too, interpreting the text, simply because there is more of it, would strain the ability of any court system.

If a constitution is overly-broad or overly-detailed, it will, in effect, govern too much, and its people will create work-arounds.  Work-arounds cause two problems.  Either the constitution will be ignored, weakening it as the law which rules all other laws (and thus weakening a country's rule of law generally), or enormous amounts of time and effort will be spent amending it.   Better to keep it simple so that the constitution might stand and allow for change through law and interpretation based on evolving needs rather than expensive amendments.

Yes, better to keep it simple.

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