Jeanne Calment was 122 when she died in her lifelong hometown of Arles, France in 1997. No one has ever lived longer, or at least no records can verify anyone having done so. At 117, Calment gave up smoking only after her increasingly poor eyesight prevented her from lighting her own cigarettes. A year later, she took up the habit again, apparently undeterred by any vision problems. Until her death her diet consisted, in part, of chocolate (reportedly two pounds of a week, mostly Swiss) and generous shares of olive oil (eaten directly) and port wine. In any predictive model of human life span, the case of Jeannne Calment lies considerably above the regression line.

The U.S. Constitution is, in our view, something of the Jeanne Calment of higher law. Like Calment, the U.S. Constitution defies expectations, at least according to our model of longevity. The U.S. document embodies many of the elements that we predict should lead to increased mortality rates. Our theory, as described below, focuses on the importance for constitutional longevity of higher than average levels of flexibility, inclusion, and specificity – none of which are in abundance in the Philadelphia creation. There may be good reasons to adopt the Philadelphia model – the constitutional equivalent of cigarettes, chocolate, and wine – but constitutional endurance is not one of them.

A THEORY OF CONSTITUTIONAL RENEGOTIATION

Our theory – call it a theory of renegotiation – involves notions of constitutional formation, adjustment, and endurance.