Perhaps the Only Thing Worthy of Veneration: Brevity

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Brian Christopher Jones

Brevity may be the soul of wit, but you won’t find much wit in the American Constitution. The longer the document endures, the clunkier many of its qualities appear to contemporary readers: no direct election of the president, unbearably high amendment procedures, no mention of judicial strike down power for Acts of Congress, and no explicit acknowledgement of major constitutional principles such as democracy, the rule of law, or the separation of powers. And while new Supreme Court appointments often turn into a constitutional lovefest (at 1:15 and 6:30, respectively), many contemporary constitutional scholars harbor a growing tide of resentment against the American Constitution…and for good reason: its faults are many, not least when it comes to its democratic nature. And yet, the prospects of any formal constitutional change in the near future appears highly unlikely. With this avenue closed off for citizens, there are major questions as to what Americans should be thinking about in the coming years, as the US prepares to celebrate 250 years of nationhood. For all its faults and shortcomings, there may be one saving grace: brevity. Indeed, the brevity of America’s founding document may be worthy of veneration, and perhaps could be something to rally around in the coming years.

Here I articulate three reasons to celebrate brevity: 1) brevity provides more opportunities for democratic politics; 2) brevity encourages the development of institutional norms and practices; and 3) brevity facilitates opportunities for constitutional literacy among the general public. Scholars have highlighted that constitutional brevity may be preferable to longevity in terms of GDP output and levels of corruption, indications of social trust, and the effectiveness of rights protection. While these studies indicate benefits to brevity, other work demonstrates a trend in contemporary constitutions towards more specificity, resulting in longer constitutions designed to limit discretion, essentially telling agents “exactly what to do and not to do” (Versteeg & Zackin, chp. 15). But these constitutions appear to be more flexible, thus inviting more frequent revision. The issues remain far from settled, and debates will undoubtedly continue as to what strategy future constitutional drafters should take, and what qualities provide the best fit. However, in this post I argue the most important reason for brevity is simply this: to enhance the opportunity for self-government.

Brevity Provides More Opportunities for Democratic Politics

It is well-documented that the American founders were highly skeptical of politics and politicians, and yet (perhaps ironically) the Constitution they constructed was relatively brief. This has produced a system in which the Supreme Court has become much more powerful and influential than originally thought, but in which brevity has left much opportunity for democratic politics via the elected branches to shape and mold the development of the country. As Eskridge and Ferejohn demonstrate in their fascinating book about superstatutes, many of the fruits of the elected branches have not just supplemented, but often supplanted, the Constitution in various ways. This led the authors to suggest that the US was more “A Republic of Statutes” than a democracy dominated by large “C” Constitutionalism. Statutes at the federal and state level have filled the enormous holes in the lives of citizens, touching on: education, the market, housing, medical care, unemployment, and retirement. As the authors note, “the Constitution has little to say about the institutions that matter most to people’s lives,” and it has been democratic politics—largely via the elected branches and through political parties—that have filled these voids. Thus, for those frustrated with (or openly hostile to) particular elements of the Constitution, such as Article V, brevity has provided a path forward.

Another benefit of the document’s brevity is that although the Constitution does say that the Constitution is supreme (Art. VI), it doesn’t say how constitutional disputes should be resolved. This is a major advantage of the US Constitution: whereas other countries may be dependent on one particular institution to police the constitution (e.g., a Constitutional Court), in the US there is no such designated institution. It means that, at various points in the nation’s history, different branches have taken the lead in resolving constitutional issues, and—viewed historically—no one branch can be considered the so-called “constitutional guardians.” This situation, which stems from the Constitution’s brevity, also allows the elected branches to play enhanced roles.

Related to no one branch having ultimate constitutional authority, brevity also means that the political branches may attempt to respond to threats from the other branches. One of the major concerns at the moment is the Supreme Court, which appears poised to overturn Roe and continue on its current trajectory. Once again, brevity allows room for democratic politics to come into play: Article III in relation to the judiciary is especially short, leaving lots of room for maneuver should the political branches wish to get involved. Many have focused on re-shaping the Court itself, with something akin to court-packing. Others have focused on “democratizing” the Court in various ways, such as through requiring Supreme Court supermajorities to strike down legislation or enacting jurisdiction-stripping legislation. Other ideas may be to revoke legislation that allowed the Supreme Court to take full control of its docket (such as the Judiciary Act 1925), or perhaps devise a way to subject Supreme Court justices to retention elections, similar to how many state Supreme Courts operate. But the point is that there is wide scope for democratic intervention, should the elected branches choose to get involved.

Thus, the less text present in a constitution itself, the higher the likelihood that politics—and representative institutions more generally—can thrive.

Brevity Encourages the Development of Institutional Norms and Practices

Because the US Constitution is so brief, institutional norms and practices have had freedom to develop outside the limits of constitutional constraint. This is key, as healthy and robust institutions are important for any functioning democracy. If governmental institutions are to succeed, then they should be free to change internal policies and procedures, make and learn from mistakes, and develop the best strategies for institutional success.

Like it or loathe it, the Senate filibuster rule is case in point. This controversial tool, which the Constitution says absolutely nothing about, is an example of an institutional rule that, for better or worse, has impacted constitutional development within the United States. Early versions of the rule amounted to “talking a bill to death,” but the mechanism became formalized into Senate rules in 1917, when the idea of invoking cloture became possible to end debate on a matter and let Senators move forward. Since then, the rule has continued to develop. The 60-vote supermajority long existed for most presidential appointments, including federal judges, and also for legislation. However this was changed in 2013 in relation to presidential appointments and non-Supreme Court federal judges, allowing Obama to appoint “the most diverse group [of judges] in US history.” The rule was changed again in 2017 for advancing Supreme Court justices, although this time it was by a Republican-controlled Senate led by Mitch McConnell. The rule change got Justice Amy Coney Barrett through the Senate, but it also got Justice Ketanji Brown Jackson through. The point is that the rule has changed and adapted to various political circumstances, and it has done this because of its lack of entrenchment.

Development of healthy and robust institutions may be especially important when threats arise from inside a democracy, such as when a problematic leader ascends to power. Institutions that have well-established norms and practices will not be as easily overtaken as those that were never given the opportunity to develop these in the first place, and have only been handed down through a codified Constitution.

Thus, the less verbose written constitutions are, the more institutional refinement can take place.

Brevity Facilitates Opportunities for Constitutional Literacy Among the General Public

The original US Constitution was roughly 4500 words, and including subsequent amendments, it now sits at about 7700 words. This length is certainly out of step with current standards. The average written constitution established in the 21st century is over 21,000 words (based on data from here and here). But the fact that contemporary constitutions don’t appeal to brevity may be a significant mistake: the longer a written constitution is, the less likely citizens will be able to read and understand it. Admittedly, as numerous studies throughout the years have documented, the American public has struggled with constitutional literacy…but so have many other countries, and the struggle in relation to enhanced constitutional literacy is not uniquely American.

Nevertheless, because of the US Constitution’s brevity there remain opportunities for citizens to get to know and interact with the Constitution (e.g., through public readings, through purchase of the document, or even being able to easily carry it around in your pocket or scroll through it on your chosen device). These are not perfect opportunities, but they are opportunities nonetheless. Beyond limited appeals to a preamble or a few particular provisions, these opportunities are not as easily realized in jurisdictions with lengthy written constitutions. For example, the Indian Constitution is over 145,000 words. The prospects of citizens getting to know that document are highly unlikely, and the excessive length raises serious concerns regarding what to expect of ordinary citizens when it comes to constitutional literacy. 

Ultimately, the shorter written constitutions are, the more opportunity citizens will have to get to know and understand these documents.

Conclusion: Celebrating Brevity

Countries don’t need written constitutions to survive or prosper. The UK and New Zealand are evidence of that. But if a country’s going to have one, then it should be brief. Bloated and long-winded constitutions display a lack of trust in politics, political institutions, and citizens, and don’t help realize the idea of self-government.

Brief constitutions provide more space for politics, more room for institutional refinement, and more opportunity for citizen consultation. And in an age of constitutional supremacy characterized by rising judicial power and an increasingly fractious relationship between law and politics, brevity may just help provide a path forward.

I began this post with a reference to Shakespeare, who said that brevity was the soul of wit. But when it comes to Constitutions, brevity may just be the soul of democracy. And that could be something to rally ‘round. 

Many thanks to Erin Delaney for excellent comments on a previous version of this post. Special thanks to Sandy Levinson for all his insight and inspiration throughout the years, and also for being so friendly and accommodating with his time. Brian Christopher Jones is Lecturer at the University of Sheffield School of Law. You can contact him by at brian.c.jones@sheffield.ac.uk.