Can written constitutions undermine the rule of law?

I'm in the final stages of co-authored book on rule of law in post-conflict settings (Can Might Make Rights? Rule of Law after Military Interventions, with Jane Stromseth and David Wippman, forthcoming, Cambridge Unievrsity Press). I've also been planning out my Constitutional Law classes for the term, and the other day I started wondering about the relation between written constitutions and the rule of law. We generally assume that written constitutions are helpful in promoting the rule of law. Regardless of precisely how we define the rule of law, it seems to me that this assumption is justifiable at least in the early years (decades?) of any society. When a society creates a new form of government (after a revolution, civil war, external military intervention, or some more run of the mill political crisis), there are good reasons for that society to want to bind itself in advance to abiding by certain rules and principles. Such precommitments enhance stability, help keep everyone honest, give "young" societies benchmarks for evaluating themselves, etc. Thus, constitutions are usually at least somewhat difficult to amend (if they are too easy to amend, they don't achieve the above goals). But here's what I'm wondering: is there a lapse of time after which having a written constitution may actually undermine rule of law values?

Inevitably, as time goes by after the initial drafting and adoption of a constitution, it becomes increasingly likely that changing circumstances will make some/many of the constitution's provisions less salient and helpful. If the Constitution is difficult to amend, as is the U.S. Constitution, this problem may worsen with time. There are ways around the problem-- one can develop interpretations and doctrines that allow us to "bring the Constitution up to date" without actually amending it-- and this is of course what we have done in the U.S.  I think this is as it should be. But the problem is that the more one is forced to depart from a "straight" reading of the Constitution to justify "modern" solutions to problems-- the more one is forced to rely on legal fictions and creative interpretive extensions of the text-- the more one risks undermining other values associated with the rule of law, like transparency.

Here's the paradox: if a society "strictly" adheres to a constitution as the decades and even centuries go by, it's doing itself a disservice, since the constitution will become more and more "out of date," but if a society relies on ever fancier interpretive footwork to shoehorn modern understandings into constitutional categories, perhaps the society risks undermining public commitment to the rule of law itself, since the "ordinary" person (and even many lawyers) will have less and less faith in the process of constitutional interoretation (or in judges, presumably).

I know I'm radically oversimplifying here, and I hasten to add that I am not a constitutional law scholar, so I'll have to beg for readers' indulgence if I'm missing something obvious. But the more I think about the recent debates triggered by Posner's Harvard Law Review foreward, Tribe's assertion that there is no longer enough consensus on constitutional issues to write a treatise, etc., the more I wonder how much of this is a problem that is exacerbated, if not actually created, by having such an old written constitution. (Of course, this presupposes that it is a problem-- but I'd argue that the extreme division we currently have in the U.S. over constitutional questions is a problem, though I go back and forth on how severe a problem I think it is). It's not that other societies with similar legal cultures (Britain, France, etc.) don't also gone through periods of extreme lack of consensus on important legal and political questions-- but perhaps, in the US, these periods of lack of consensus are more harmful to our legal and political culture, since we are (again, perhaps) so much more likely to conceive of our political community by reference to our Constitutional norms. That is, we self-identify as a "rule of law nation," and we tend to link the rule of law to living under the oldest written constitution in the world. But maybe we should stop seeing having the oldest written constitution in the world as a rule of law asset, and begin to ask whether it is increasingly becoming just as much of a rule of law liability?

If this is a silly idea, I hereby disclaim it. But I'd be interested to know what others think.

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