Length and Form

Brevity buys durability and costs certainty. The American text has survived because it says so little that it can be read to fit almost any age, and the price is that its meaning is contested continuously and changes with the composition of the Supreme Court.

A worked example

Suppose the retirement age of judges must be changed.

India. Article 124(2) proviso fixes sixty five for a Supreme Court judge and article 217(1) proviso sixty two for a High Court judge, so a change requires a constitutional amendment; the Fifteenth Amendment in 1963 raised the High Court age from sixty to sixty two.

United States. Article III provides tenure during good behaviour and no retiring age, so there is nothing to change and a change would need an amendment under Article V, which is why proposals for term limits have gone nowhere.

Canada. Section 99(2) of the Constitution Act 1867 fixes seventy five, and it was inserted by amendment in 1960.

United Kingdom. Section 11 of the Senior Courts Act 1981 and the Judicial Pensions and Retirement Act 1993, both ordinary statutes, so a change is an ordinary Bill; the age was raised from seventy to seventy five in 2022 by ordinary legislation.

Four systems, and the effort required to make the same change ranges from an ordinary Bill to an impossibility.

The cases

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, concerned the extent of the amending power in a constitution of great length, and the Court had to decide whether every one of hundreds of articles was equally amendable.

Held, by seven to six. Article 368 confers no power to alter the basic structure. The corollary, developed since, is that most of the Constitution is freely amendable and a small set of features is not.

Why it matters here. In a long constitution, not all provisions are equally fundamental, and the doctrine is what separates them. A short constitution has less need of such a doctrine because it contains less that is not fundamental.

Facts. United States v. Lopez, 514 U.S. 549 (1995), concerned whether the commerce power extended to possession of a firearm in a school zone.

Held, by five to four. The Act exceeded the commerce power: the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect interstate commerce.

Why it matters here. It shows the cost of brevity. Whether the federal government may legislate on a subject depends on how eight words in Article I section 8 are read, and the answer has changed several times since 1937.

Distinctions

What beginners get wrong

"The Indian Constitution has 395 articles today." It was numbered to 395; amendments have inserted many lettered articles and omitted others, so the number of live provisions is different from the highest number.

"A short constitution is a better constitution." It is a different bargain. Brevity transfers power from the framers to the interpreters, which is a gain if you trust the interpreters and a loss if you do not.

"Length explains the amendment count." Partly. The other part is that article 368 is only moderately rigid, and that several matters are amendable by simple majority outside it under articles 4 and 169.

Limits and criticism

Word counts are not comparable across languages and drafting styles.

Length says nothing about quality. The Irish Constitution is short and has produced a rich jurisprudence of unenumerated rights.

The Schedules complicate the count. India's Seventh Schedule alone contains ninety seven, sixty six and forty seven entries, which is more law than several of the other constitutions contain in total.

Quick revision

1. India: 395 articles and twelve Schedules, the longest national constitution in the world.
2. United States: about 7,600 words, seven Articles and twenty seven Amendments, the shortest and oldest in force.
3. Ireland fifty Articles; Germany 146; Switzerland 197; Canada 147 and 61 sections; the United Kingdom uncodified.
4. India is long because it had more jobs, provided for the units, included matters left elsewhere to ordinary law, inherited a statutory drafting style, and distrusted the future.
5. Length buys certainty and costs flexibility; brevity buys durability and costs certainty.
6. Kesavananda Bharati: in a long constitution not all provisions are equally fundamental.
7. United States v. Lopez, 514 U.S. 549 (1995): in a short one, everything turns on interpretation.

Test yourself

1. Why is the Indian Constitution the longest in the world? Because it had more to do: integrate princely States, guarantee rights in a plural society, divide power across a subcontinent, provide for social transformation, prepare for emergencies and carry over an existing legal order. It also provides for the States and for local government, includes matters left elsewhere to ordinary law such as the public services and the Comptroller and Auditor-General, and inherited the statutory drafting style of the Government of India Act 1935.

2. What is the trade-off a framer makes in choosing length? Certainty against flexibility. A rule in the constitution is protected from an ordinary majority and can be changed only by amendment; a matter left to ordinary law can be adjusted easily and can also be taken away easily. Brevity transfers the decision from the framers to the legislature and to the courts.

3. Illustrate the trade-off with the retiring age of judges. In India it is in articles 124(2) and 217(1) and needed the Fifteenth Amendment in 1963 to change for High Court judges. In Canada it is in section 99(2) of the Constitution Act 1867 and was inserted by amendment in 1960. In the United States there is none, and introducing one would require an amendment under Article V. In the United Kingdom it is in ordinary statutes and was changed by ordinary legislation in 2022.

4. Does brevity make a constitution more durable? It contributes. The American text has lasted because it says little enough to be read to fit later ages, and because Article V makes formal change nearly impossible so change happens by interpretation instead. But durability of the text is not durability of meaning: what the commerce clause reaches has changed several times without a word being altered.