Our new book explores how constitutional rights matter. In short, we find that some rights are more effective than others. Many constitutional rights—like Free speech, the prohibition of torture, the freedom of movement, the right to education, and the right to healthcare—aren’t associated with improved outcomes. But some constitutional rights—specifically the right to unionize, the right to form political parties, and the freedom of religion—are associated with better outcomes.
We develop a theory to explain these findings. The starting point of that theory is that including a right in a constitution, by itself, is rarely enough to change government behavior. The ostensible goal of constitutional rights is constraining government power, but a typical government has a near-monopoly on force. When a government’s interests and a constitutional rules are opposed, it’s thus not obvious why a government would respect constitutional boundaries that it could just ignore. This is why, as we previously mentioned, James Madison described the rights in the U.S. Constitution as “parchment barriers.”
Examples have piled up since Madison’s day of governments complying with its constitution when non-compliance is politically costly. This is the case when citizens act together to punish a government for rights violations through protests, electoral mobilization, litigation, or civil disobedience. When citizens can successfully impose these political costs, governments hesitate to violate rights.
But punishing governments for rights violations is not easy. To do so, citizens must overcome two obstacles. First, they need to agree when a government action constitutes a constitutional violation. This is a coordination problem. For example, diverse citizens will have different views about the type of free speech restrictions they deem acceptable. To punish the government, they must first agree on what crosses the line.
Second, after agreeing that something is a constitutional violation, they need to work together to punish the government. This is a collective action problem. Imposing political costs on a government can be hard, and potentially dangerous, work. For example, any citizen considering attending a protest might stay home if going entails legal or safety risks. Potential protesters thus need assurance that they will be joined by many others, which is difficult to get for large groups of mostly unconnected citizens.
Dedicated organizations help solve both of these problems. When there is uncertainty over whether a government action violates the constitution, organizations can persuade their members, and others, that the government did indeed cross the line. When there is uncertainty over whether people will help punish the government, organizations can assure would-be protesters that they will not be alone.
Some rights, however, are more likely than others to have dedicated organizations that care about their protection. In fact, some rights actually require an organization to be exercised. We call these organizational rights. For example, to exercise the right to unionize, there needs to be a trade union that engages in collective bargaining. Likewise, exercising political party rights requires the establishment of political parties. Freedom of religion is similar; it, too, is typically (though not exclusively) practiced with an organization. None of these organizations—unions, political parties, and religious groups—are established for the purpose of protecting constitutional rights. But when their rights are encroached upon, they have both the incentives and means to resist.
By comparison, when exercising a right is primarily an individual activity, dedicated organizations are less likely to exist. Free speech is an example: a person does not necessarily require a free speech organization to express her views. Of course, this does not mean that there are never organizations dedicated to free speech; in the United States, the ACLU is a well-known example. But since organizations are not necessary to practice rights, they depend on members and founders specifically dedicated to rights protection. Moreover, governments around the world are increasingly placing restrictions on human rights organizations, a much-discussed phenomenon referred to as “the closing space of civil society.”
And while all organizations potentially benefit from the constitution, the organizations that are necessary to practice a right enjoy an additional constitutional benefit: they are directly protected and recognized by the constitution as trade unions, political parties, or religious groups. And since the ability to organize freely and perform certain activities (e.g. collective bargaining, political organizing, and religious worship) is part-and-parcel of the constitutional rights, these organizations possess stronger constitutional leverage to oppose restrictions on their core activities than human rights organizations.
This basic story does not depend on whether countries are democratic or have independent courts. Many democracies ignore rights in their constitutions when it is expedient to do so. And, contrary to popular belief, constitutions often matter to today’s autocrats. Many modern autocrats hold elections and maintain nominally democratic institutions. At the same time, they also use the constitution to stack the deck in their favor. In many cases, this results in constitutions that simultaneously grant sweeping executive powers and contain liberal bills of rights. Because these constitutions benefit those in power, they matter to authoritarian leaders in the mold of Vladimir Putin, Recep Tayyip Erdoğan, and Viktor Orbán. But because these constitutions contain rights provisions, well-organized groups can use them to their advantage. When governments want to be seen as playing by the constitutional rules, organizations that call out violations can be hard to ignore. The result is that constitutional rights can be used strategically by dedicated organizations in autocratic and democratic regimes alike, and they can make a difference in places without independent judiciaries.
But although some constitutional rights matter some of the time, even dedicated organizations armed with the constitution are no guarantee for success. When governments are sufficiently dedicated to repression, they will get their way eventually. A well-known metaphor used in constitutional law is that of Ulysses and the Sirens. In the story, Ulysses’s crew ties him to the mast with ropes so that he can resist the temptation of the sirens’ singing. A common account is that constitutions are like these ropes: they restrain governments that are tempted to abandon course.
Our book shows that this is not a great metaphor for constitutional rights. Constitutional rights are less like firmly tied ropes and more like Speed Bumps. When used strategically by organized groups of citizens, rights slow down governments that seek to transgress their powers, but they can’t always stop a government set on repression in its tracks.
Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the second in a series of blog posts on parts of the argument and evidence from the book.