Relatedly the US constitution is the oldest continuously operating
constitution in the world.
As I alluded to before and will return to at the end of this segment.
Written constitutionalism backed back a strong supreme court,
is becoming the world's norm.
But for most countries it's a phenomenon that has happened only in
the past century.
The US with a constitutional tradition stretching back over two centuries
has a much longer process of institutional development than other countries,
which itself is a key feature of our constitutional culture and
it affects interpretation even to the present day.
All of these variables that I've been talking about.
The writtenness of the Constitution, its extreme brevity, its age, the difficulty
in changing the Constitution, combine with yet another feature about any kind of
written language, which is the inherent ambiguity of language.
And this is a short a Constitution, in the United States, which contains.
Some phrases which are very vague and don't come with definitions clauses, and
I'll show you some examples.
Some parts of the Constitution are written in language that is crystal clear,
even today.
And generally, most readers of the English language would agree in what it means.
Many other parts of the Constitution, including some of the very most
important Parts, are written in language that was extremely vague then and
remains Extremely vague and compels subsequent interpretation.
So for instance the Constitution contains a very clear requirement about the age of
the President.
It says, no person shall be eligible to be President who
shall not have attained the age of 35 years.
That's clear, it was clear when it was written.
And it would be clear today where any controversy over that to occur.
But consider another phrase also from article two which says,
the executive Power should be vested in President.
This is one of the most crucial foundations of the modern
bureaucratic state.
This power, the executive power, on which our entire administration is
founded with almost a million employees virtually everything, everything we
think of as the federal executive branch its authority rests on this clause.
Yet the basic phrase here, the key operative phrase,
executive power, is not defined anywhere in the Constitution.
In order to give meaning to that, what judges and other participants in
constitutional debates have had to do over the past 200 years is contest, debate, and
fill in their own interpretation of what executive power means.
Likewise in the key provisions that protect our individual rights,
some of the most important phrases are inherently vague and ambiguous.
The eighth amendment prohibits excessive bail.
What does excessive mean?
It prohibits cruel and unusual punishments.
What's cruel to one person may not be cruel to somebody else.
These are clauses that come without definitions and
without explicit user instructions, and this is important and
this was intentional by James Madison and the other framers.
They did not want a document that would be fixed in time with explicit.
User code, instead, they envisioned a document where each
generation would supply its own definitions for these grand, but
yet inherently vague provisions in the Constitution.