In the late 19th century, American Indian tribes started writing constitutions, chiefly because they needed formal governments to facilitate relations with the federal government.[1] Like national constitutions, these tribal constitutions set out the government structures for the tribe. Yet, unlike most national constitutions, they did not necessarily reflect the tribes’ traditions values, or unique circumstances: instead, they reflected the templates provided by the federal government. The federal government was intimately involved in the drafting process of these constitutions, offering considerable guidance, proving models, and even demanding approval power.
Ultimately, most tribes ended up with one of two broad constitutional models. The reason is that the two major parties had considerably different views on the form that tribal constitutions should take. The Republican Party believed in assimilating American Indian tribes, and it pushed for the direct election of tribal executives—which are similar to other forms of government in America—to accomplish that goal. The Democratic Party was more supportive of accommodating traditional political institutions, and it supported indirect election of executives, since this more closely reflected communal approaches to governance. Given these different views, tribes that wrote their constitutions when the Republican Party was in power typically adopted a presidential system, while tribes that wrote their constitutions when the Democratic Party was in power typically ended up with a parliamentary system.
Because the tribal constitutions reflected the preferences of the party that controlled the executive branch, and were largely exogenous to the social, political, and geographic histories of the tribes, they provide a unique natural experiment to explore the impact of constitutional design choices on long run outcomes. Recognizing this, Randall Akee, Miriam Jorgensen, and Uwe Sunde coded some 70 constitutions of tribes with democratic governments and a population of at least 750 people.[2] They further collected data on the characteristics of these tribes before and after the adoption of the constitution, like their wealth, literacy, and integration into to surrounding communities.
The results are striking: they find that constitutional design choices have a profound impact on long-run economic outcomes. Tribes that indirectly elect their executive—the model promoted by Democratic administrations—have higher income per capita and greater participation in the labor force. They argue this is likely because “parliamentary systems subject executives to the parliamentary or council approval by design, thereby enforcing a greater need for compromise and balancing of interests.”
The experience of the American Indian tribes offers important insights on how to view the findings from our book on the effectiveness of constitutional rights. Notably, even though the results in our book show that (some) constitutional rights may be less effective than many had hoped, that does not mean that other parts of the constitution are not incredibly important. Indeed, there are several important lines of research about the effects of constitutions that are left unexplored by our book that are worth further inquiry.
Notably, given that government structures can matter for economic development,[3] an important avenue for future research is whether some government structures are more conducive to rights-protection than others. For example, friend of the blog James Madison believed that the U.S. federal system would be a safeguard that would protect individual liberties.[4] But while some existing research has explored the relationship between government structure and economic growth, little headway has been made in exploring the impact of structural constitutional design choices on de facto rights protections.
Another avenue for future research is the long-term consequences of bills of rights. Our book examined the effects of constitutional rights on de facto rights protection over the course of several decades, but it is possible that it takes much longer for constitutional rights to become effective. For example, the First and Second Amendments of the U.S. Constitution did little when first adopted, but they took on new life after groups like the American Civil Liberties Union and the National Rifle Association formed in the early 20th century and used the courts and the political process to advocate for their preferred interpretations of these rights. Likewise, scholars of the Magna Carta have noted that this seminal document did very little for centuries, but that it was gradually rediscovered and became “a weapon in the struggle for modern liberty” centuries later.[5]
Yet another avenue for future research is whether the impact of constitutional rights is conditional on the presence of certain country-characteristics. For instance, it is possible that the right to education may not have an impact on low-income countries, but does have an impact in middle-income countries. Likewise, it is possible that constitutional torture prohibitions do not have an impact in countries with strong executives, but do make a difference in countries with powerful legislatures.
In our book, we did not find systematic evidence that whether countries are democratic or have independent judiciaries are crucial channels to effectuate constitutional rights. But our initial exploration leaves open the possibility that there are other conditions that might matter, such as the level of economic development, the strength of the legislature, or the presence of civil society groups. It is simply not possible to generate and test every possible contingent theory about the impact of rights in a single book. Our book is thus not the end of the debate on the role that constitutions can play in the protection of human rights.
Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the sixth, and final entry, in a series of blog posts on parts of the argument and evidence from the book.
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[1] The U.S. Constitution initially treated American Indian tribes as foreign nations. The federal government regularly signed treaties with tribal leaders, American Indians were not given citizenship, and Congress was granted the power to regulate commerce with “Indian Tribes.” In the early nineteenth century, the Supreme Court issued a trilogy of decisions holding that it was a mistake to read the Constitution this way.See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Going forward, Indian tribes were to be treated like “domestic dependent nations,” with a relationship to the federal government like a “ward to its guardian.” Cherokee Nation, 30 U.S. (5 Pet.) at 17. Despite these rulings, however, the government continued to sign treaties with American Indian tribes. This practice changed only with the passage of an 1871 law that prohibited the practice.
[2] Randall Akee, Miriam Jorgensen & Uwe Sunde, Critical Junctures and Economic Development: Evidence from the Adoption of Constitutions Among American Indian Nations, 43 J. of Comp. Econ. 844, 847 (2015).
[3] The research on Indian tribal constitutions is not the only indication that structure matters: a body of research has similarly shown that government structures can impact economic development. See, e.g., Torsten Persson & Guido Tabellini, The Economic Effects of Constitutions (2003); Douglass C. North & Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. Econ. Hist. 803, 808-12 (1989); Raphael La Porta et al., Judicial Checks and Balances, 112 J. Pol. Econ. 445 (2004); Xavier de Vanssay & Z.A. Spindler, Freedom and Economic Growth: Do Constitutions Matter? 78 Pub. Choice 359 (1994).
[4] See, e.g., The Federalist No. 51 (James Madison).
[5] See, e.g., Friedrich Hayek, The Constitution of Liberty 143 (1960); James C. Holt, Magna Carta 8-9 (1992); Paul D. Halliday, Habeas Corpus, From England to Empire 15 (2010).