Constitutional Tradeoffs

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.

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