Comment on Amendment-Metrics: The Good, the Bad and the Frequently Amended Constitution

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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Book Chapter

Publication Date

2017

ISBN

9781509908257

Publisher

Hart Publishing

Language

en-US

Abstract

I am grateful for the opportunity to comment on Xenophon Contiades and Alkmene Fotiadou’s instructive paper, ‘Amendment-Metrics: The Good, the Bad and the Frequently Amended Constitution’. They open by asking, ‘Does the frequency of amendment relate to constitutional quality?’. In particular, they ask, ‘Can frequent amendment be used to detect bad constitutions?’. They observe that some empiricists, enamored of the project of ‘leximetrics’, have seized upon ‘amendment rate’ as an empirical datum on which to build theories. For those empiricists, a frequently amended constitution is a bad constitution. Contiades and Fotiadou dispute this claim, especially in so far as its proponents may ‘offer[] criteria to constitutional designers’. More worrisome still, Contiades and Fotiadou observe, some of these empiricists have sought to link the rigidity level of a constitution to its word length and correlate both to the economy. Such scholars assert that long constitutions harm the economy and thus are bad constitutions.

Contiades and Fotiadou undertake to ‘pin down the fallacies underlying such approaches’. In particular, they seek to ‘cast doubts on the neutrality of the empirical finding that long constitutions are bad’ and to explain ‘why frequent amendment cannot be used as an indicator of bad constitutional quality’. Furthermore, they challenge the claim of a recent paper, by George Tsebelis and Dominic Nardi, based on empirical evidence from Organization for Economic Co-operation and Development (OECD) countries. Tsebelis and Nardi argue that ‘a lengthy, difficult to formally amend constitution is a bad constitution, which affects negatively the economy and the corruption level’.

My first reaction to Contiades and Fotiadou’s summary of Tsebelis and Nardi’s arguments was bewilderment and incredulity concerning those arguments. In the abstract, it sounds absurd to suggest that a long constitution, as such, is bad, or that a frequently amended constitution, as such, is bad. Furthermore, in the abstract, such an analysis certainly invites a ‘what’s the world coming to’ response—we might wonder whether Tsebelis and Nardi were writing a parody of leximetrics (or amendment-metrics) analysis—just as I sometimes have wondered whether certain law and economics scholars were writing parodies of law and economics scholarship. Contiades and Fotiadou clear-headedly expose some problems with and fallacies in the use of leximetrics or, as they put it, ‘amendment-metrics’. I share their skepticism concerning whether this ‘newly bred comparative empiricism’ can ‘take the lead in constitutional law, casting a shadow over the importance of qualitative criteria and normative analysis’.  But, on further reflection, I wonder whether Tsebelis and Nardi may be onto something important, at least at a general level. Moreover, I would be less hesitant than Contiades and Fotiadou are about offering criteria for a bad constitution or a good constitution. And I would be more open than they are to the possibility that a long, frequently amended constitution may, in certain circumstances, be a bad constitution (or, at any rate, not a good constitution).

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