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Mr Khan said:
I would expect a modern constitution to be longer. The U.S. constitution would certainly be longer if we re-wrote it today, even assuming that we intended the new constitution to make zero practical changes from the old, since there are a lot of "court rights", stuff that the Supreme Court drew out of the Constitution that isn't explicitly written in there. Modern governments are more involved than 18th century governments, and would thus need to spell out more stuff |
Nope, that's neither juridically viable or desirable on modern constitutional theory. What we call synthetic constitutions trump analytic ones anytime.
You see, the most bulky and complex body of text written as a single body was the original French Civil Code, because it tried literally to rule over everything instead of setting general guidelines and principles. Needless to say, it failed spetacularly. Even for the so called Civil Law, as opposed to the Common law, the measure of court rulings have been steadily increasing.
Inside the juridical field there is a longtime standing tug-of-war between theorists, mainly university professors and other doctrinaires, and practicioners, that is, judges, lawyers and prosecutors. Theory versus practice. The first one prefers the laws to be neatly written down - which itself it includes already a measure of valuation, since no letter of law is going to be neutral - and the second one focus on jurisprudency and subjective adaptation of the letter of the law to the concrete case. The former one is inherently flawed because no letter of law is going to fill every concrete case. The letter of law becomes no longer a form, but a one-size-fits-all mold that inevitably is going to rule some cases unfairly, or discourse innefectively over State matters.
I could give you plenty of examples of excessive constitutionalism placing in check beneficial laws and judicial measures on countries like Brazil or India, or even inside the European Union. It was told the constitution would protect those countries - however, it's very interpretation still depends on whatever the dominant powers seem to be correct, or often preventing the country from swiftly taking decisions it would benefit the populace as a whole.
Most curiously, it would seem the US nowadays is one of the very few countries that is moving on the opposite direction of the power shift from the legislative to the judiciary that has been happening for a long time. It's possible that the large ammount of trust of some people place on their government and intellectual theorists - such as americans, canadians and swedes - may factor into it.
Personally I think it's a terrible idea. We have Argentina as neighbors to show just what happens when populism and statism take a grip on the rule of law.
