Co-blogger Pierre Lemieux’s recent post “Can a Constitution Limit the State?” (July 21, 2025) poses an important question, one political theorists have wrestled with for millennia. In the comments section of that post, I linked to a recent paper in the Journal of Institutional Economics by Jacek Lewkowicz, Jan Falkowski, Zimin Lou, and Olga Marut (henceforth LFLM) that makes the case the wording of a constitution will affect how governments comply with their restrictions (“Watch out for Words: Wording of Constitution and Constitutional Compliance,” Journal of Institutional Economics, 20:e35). Readability (that is, avoiding highly complex and technical jargon) makes it more obvious whether a government official violates the constitution, which in turn can increase pressure on him from the electorate. Conversely, if a constitution is highly technical and difficult to read, its enforcement falls to those specially trained in its interpretation, making it harder to enforce. Thus, making the constitution (and subsequently laws) understandable to the vast majority of people has benefits.
But some readers may recall my post from April, “Colloquial Law.” In that post, I quoted Lon Fuller on the Soviet legal experiment to make laws so easy to understand that every worker could understand them. In the process, the law lost all consistency and the law’s application by judges became “capricious and less predictable.” Note that this is the same effect predicted by overly technical constitutions as well.
How to explain this apparent contradiction? It could be that the relationship between readability and compliance is not monotonic. The readability of a constitution has marginal benefits, but these marginal benefits are subject to diminishing returns. At some point, the net benefits go negative. Indeed, this could also explain the finding in LFLM that the precision of language gives mixed results.
It could also be that other factors swamp readability. In a large democracy like the US, the ability of any one voter (or, for that matter, any one representative or senator) to punish those who violate the Constitution is quite limited. Your typical collective action problems come into play. Smaller democracies may have more luck in enforcement.
There are many interesting ways to answer this question. I am sure constitutional scholars have already considered them. Regardless, how effective constitutions are remains an important question.
READER COMMENTS
nobody.really
Aug 8 2025 at 2:39pm
Learned Hand, In Commemoration of Fifty Years of Federal Judicial Service, 264 F.2d xxxviii (2d Cir. 1959).
Craig
Aug 10 2025 at 11:21am
“It could also be that other factors swamp readability.”
There needs to be an incentive to enforce it. The US Constitution has a system of checks and balances and one problem is that the federal government became the sole arbiter of the extent of its authority. XVII Amendment effectively took the states out of the equation. Historically there was some good reasons for this because there was a fair amount of corruption, but as originally envisioned the Senate, made up of members who owe their office to the states, coupled with fact that Supreme Court was based on presidential nomination coupled with advice and consent of the Senate, that the states would use their ability to control who is in the Senate to zealously guard state powers.
Mactoul
Aug 10 2025 at 9:38pm
State power is also a function of popular sentiment. If Americans felt they were citizens of particular states before being Americans, the states would retain powers and a measure of Independence.
But I think Americans feel themselves Americans first and thus the decay of state independence.
Knut P. Heen
Aug 12 2025 at 8:04am
The problem is that languages evolve over time. Clear language 200 years ago is not necessarily clear today. The US constitution is not the only constitution in the world. Some languages have evolved much more than American English.
It would be very interesting to know what the ten commandments of Moses originally said. He probably said something horrible about slaves.
nobody.really
Aug 12 2025 at 2:50pm
Maybe some original text said something horrible about slaves. But the remaining text acknowledges the existence of slaves without condemning the practice of slavery. Exodus 20:17 and Deuteronomy 5:21 say “you shall not covet your neighbor’s wife, or his male slave, or his female slave, or his ox, or his donkey, or anything that is your neighbor’s.”
And to clarify, Exodus and Deuteronomy state that the Ten Commandments came from God, not Moses.
John Tucker
Aug 14 2025 at 4:26pm
It’s an intriguing point that the relationship between constitutional readability and compliance might follow a curve rather than a straight line. In other words, making a constitution easier to understand could initially improve enforcement by empowering the general public to spot violations, but pushing simplicity too far risks stripping away the precision needed for consistent interpretation—just as Fuller’s example from Soviet law illustrates. That suggests the real challenge isn’t simply “make it easy” or “make it precise,” but to strike a balance where clarity doesn’t come at the expense of legal rigor. And as you note, context matters: in large democracies with severe collective action problems, readability alone may not move the needle much without institutional mechanisms for enforcement. In smaller or more politically engaged polities, however, clearer language could have a much more direct impact.
Comments are closed.