Among the biggest decisions that constitution-drafters have faced is what rights to recognize. Should the constitution protect freedom of religion? Prohibit torture? Formally recognize gender equality? Guarantee access to a basic education? These questions were debated in eighteenth-century Philadelphia, in twenty-first century Katmandu, and hundreds of times in between.
Because constitutional rights exist to constrain power and document a country’s values, drafters, citizens, and non-governmental organizations consider the issue of rights-enshrinement particularly important. Rights are even commonly considered to be a crucial feature of liberal democracy itself. And whenever a country re-writes its constitution, a cadre of foreign consultants descends on it to advise the drafters—and much of the advice they offer is about the bill of rights.
But despite this strong normative consensus that rights are important, no one really knows if constitutionalizing legal barriers affects whether people actually enjoy them. Of course, that doesn’t mean that people have not had views on the effectiveness of constitutional rights.
Perhaps no view on this front is more well-known than that of the principle drafter of the U.S. constitution—and friend of the Summary, Judgement blog—James Madison. Madison characterized constitutional rights as mere “parchment barriers” that present no serious impediment to those determined to violate them.
Indeed, three recent global trends seem to support Madison’s cynicism, seriously calling into question the effectiveness of constitutional rights globally.
The first trend is the dramatic increase in the number of rights protected by constitutions. To illustrate, Panel A of the above Figure graphs the average number of rights in national constitutions from 1946 to 2016.[1] Over that period, the mean number of rights increased from 20 to 42. Modern constitutions not only recognize civil liberties like the freedom of expression or religion, but also social rights, like access to education and healthcare. They also may explicitly recognize the elderly, the disabled, children, consumers, and even animals and natural objects as being owed special protection from the government.
The second trend is the gradual improvement of countries’ actual human rights records. To illustrate, Panel B of the above Figure depicts the average scores of a leading measure of government repression—a latent index based on 13 human rights datasets—for all countries from 1949 to 2013.[2] It shows that, if a country with an average score in 2010 (for instance, Romania is the median country in 2010) had performed similarly well in 1946, it would have been in the top 16 percent of countries. (For comparison, the top performers in 2010 range from roughly Ireland to Luxembourg.)
The third trend is the puzzling one: there is a negative correlation between constitutionally recognized rights and the level of actual rights protection. Panel C of the above Figure shows a scatter plot of the repression data against the number of constitutional rights for each country. It reveals that countries with fewer constitutional rights actually have higher levels of rights protection than those with more rights. This pattern holds not just for total numbers of rights, but also for many specific rights. For instance, countries without a right to healthcare spend a higher amount of GDP on healthcare than countries that guarantee a right to healthcare in their constitutions.
Of course, this kind of cursory look at the data doesn’t prove anything. A negative correlation between constitutional rights and actual levels of government repression could be because young countries with historically poor human rights records enshrine many rights that they aspire to. Even if these new rights affect government behavior for the better, these young countries are unlikely to catch up to established democracies with fewer rights but historically strong rights records. Thus, even if the correlation between the number of rights in constitutions and actual rights practices is negative, it is nonetheless possible that constitutional rights improve those practice.
The goal of our book is to try to figure out if, despite these overall negative correlations, there are circumstances where including a right in a constitution actually matters for the protection of the right. That is, if a country includes a de jure right in its constitution, is that likely to translate into better protection of that right de facto? For example, does constitutionally enshrining the freedom of expression actually cause better protection of free speech? Or when a constitution includes the freedom of religion, do people enjoy greater religious freedoms as a result?
In the next few blog posts, we’ll explain our theory, the way we test it, and the evidence we’ve produced on the effectiveness of constitutional rights. Although we’ll have more to say about it, in short, the feature that best distinguishes rights that matter from those that don’t is whether they are practiced through formal organizations.
That said, it’s important to note that rights are never a magic bullet: when governments are sufficiently incentivized and determined to violate those rights, the best that these rights protections can do is delay or inhibit the process. This insight reflects an old saying that is commonly attributed to Henry Kissinger: “The illegal we do immediately, the unconstitutional takes a little longer.”
Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the first in a series of blog posts on parts of the argument and evidence from the book.
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[1] Our data on constitutional rights was originally collected by Mila for other projects, and then expanded for our book.
[2] The Human Rights Score used in Panels B and C was created by the political scientist Chris Fariss. See Christopher J. Fariss, Respect for Human Rights Has Improved Over Time: Modeling the Changing Standard of Accountability, 108 AM. POL. SCI. REV. 297 (2014). The Human Rights Score is scaled so that 0 represents the average level of repression for all country-years in the dataset, and a score of +1 means that a country has a one standard deviation higher level of rights protection.