How Constitutional Rights Matter 9780190871451, 9780190871468, 9780190871475, 9780190871482

Citation preview

How Constitutional Rights Matter

How Constitutional Rights Matter A DA M C H I LT O N M I L A V E R ST E E G

1

3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2020 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Chilton, Adam, author. | Versteeg, Mila, 1983– author. Title: How constitutional rights matter / Adam Chilton, Mila Versteeg. Description: New York : Oxford University Press, 2020. | Includes bibliographical references   and index. Identifiers: LCCN 2019037451 (print) | LCCN 2019037452 (ebook) | ISBN 9780190871451 (hardback) |   ISBN 9780190871468 (updf) | ISBN 9780190871475 (epub) | ISBN 9780190871482 (online) Subjects: LCSH: Civil rights. | Civil rights—Interpretation and construction. | Constitutional law. Classification: LCC K3240 .C4735 2020 (print) | LCC K3240 (ebook) | DDC 342.08/5–dc23 LC record available at https://lccn.loc.gov/2019037451 LC ebook record available at https://lccn.loc.gov/2019037452 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com.

Contents Acknowledgments

vii

1. Introduction

1

PA RT I :   T H E O RY, BAC KG R OU N D, A N D M E T HO D S 2. The Organizational Basis of Constitutional Rights Protection

25

3. Existing Evidence

59

4. The Rise of Rights Constitutionalism

79

5. Research Methods

97

PA RT I I :   I N D I V I D UA L   R IG H T S 6. Civil and Political Rights: Free Speech, the Prohibition of Torture, and the Freedom of Movement

125

7. Social Rights: The Rights to Education and Healthcare

167

8. Popular Support for Constitutional Rights Violations

207

PA RT I I I :   O R G A N I Z AT IO NA L   R IG H T S 9. Freedom of Religion

229

10. Right to Unionize

265

11. Right to Form Political Parties

293

PA RT I V:   C O N C LU SIO N 12. Conclusion

327

vi Contents APPENDIX A1. Summary Statistics and Data Sources A2. Regression Results A3. Conditional Effects: Judicial Independence and Democratization

335 339 369

Index

373

Acknowledgments This book has been in the making for a number of years. Our collaboration started at the University of Chicago in 2013. Since then, we have written five different papers on the broad topic covered by the book. This book adds a wealth of new materials, but also builds on these prior papers. Because this project spans half a decade, it is difficult to do justice to all those who have contributed to our thinking in so many ways. We first want to thank those who participated in our book workshop at the University of Virginia in January 2018: Matt Blackwell, Sujit Choudhry, Todd Eisenstadt, John Ferejohn, Mike Gilbert, Tom Ginsburg, Jamal Greene, Vicki Jackson, David Law, Yon Lupu, Anne Meng, Gerald Rosenberg, Micah Schwartzman, Paul Stephan, Mark Tushnet, and Pierre Verdier. We also want to thank others who commented on various parts of the manuscript or provided guidance:  Caroline Chilton, Ros Dixon, Mauricio Guim, Gillian Hadfield, Ran Hirschl, Richard Holden, William Hubard, Tofigh Maboudi, Anup Malani, Rich Nielsen, Eric Posner, Kyle Rozema, Beth Simmons, and Bartek Woda. Over the years, different versions of this manuscript have been presented at various forums. We want to thank the participants of the faculty workshops at the University of Chicago Law School, the University of Virginia School of Law, Columbia Law School, USC Gould School of Law, the University of Pennsylvania Law School, the University of Haifa Faculty of Law, Radzyner Law School at IDC Herzliya, and the Max Planck Institute for Research on Collective Goods. We also thank participants at various specialty workshops: the Arizona State University Center for Law and Global Affairs Research Colloquium; Berkeley Law School International Law Colloquium; Harvard Law School Public Law Workshop; Hebrew University Public Law Workshop; Loyola University Chicago School of Law International Law Workshop; McGill Political Science Workshop; Northwestern Law School Law and Economics Workshop; Tel Aviv Law and Economics Workshop; UCLA Law & Economics Workshop; University of Chicago Harris School of Public Policy Development Workshop; University of Leiden Diplomacy and Global Affairs Research Seminar; and University of Michigan Donia Human Rights Center Lecture. Finally, we are grateful to participants at a number of difference conferences: the Conference for Empirical Legal Studies; the Political Economy and Public Law Conference; the Conference on

viii Acknowledgments Empirical Legal Studies in Asia; “The Limits of Constitutionalism” Symposium at the University of Chicago Law School; the European Association of Law & Economics Annual Conference; the International Society of Public Law Annual Conference; and the annual Law & Society Conference. We also acknowledge the generous financial support from the Carnegie Foundation, without which this book would not have been possible. Specifically, the Andrew Carnegie Fellowship awarded to Mila allowed us to conduct case studies in five different countries and field survey experiments. We also acknowledge financial support from the Bankard Fund for Political Economy at the University of Virginia, from the Baker Scholars fund at the University of Chicago, and from the Deans of our respective law schools, the University of Chicago and the University of Virginia. We are also indebted to some excellent research assistants, who helped us with different parts of the manuscript:  Apinop Atipiboonsin, Ian Baize, Patrick Berning-​O’Neill, Kevin Carlson, Victor Cedeno, Christy  Crouse, Paul Devamithran, Mauricio Guim, Lisa Fan, Jacob Hamburger, David Hofisi, Allie Hugi, Brigid Larkin, Joseph Ludmir, Alex Macmillan, Billi Jo Morningstar, Monica Norzagaray Pedraza, Franz Oberarzbacher, Patryk Ryszewski, Nathan Tschepik, Alex Viner, Max Wagner, and AJ Wu. We are also grateful for Kent Olson and Benjamin Doherty of the UVA Law Library, who helped us with the many foreign law citations that feature in this book. We also acknowledge the help of different country experts whom we consulted on our case studies and who helped us navigate the countries we researched. Special thanks to David Williams on Myanmar, Adrienne Lebass on Zambia, David Hofisi on Zimbabwe, Maria Smirnova on Russia, Camilo Sanchez on Colombia, Lech Garlicki on Poland, Patryk Ryszewski on Poland, Zaid Al-​Ali on Tunisa, and Anis Abidi on Tunisia. This book would not exist without the hundred or so judges, civil society leaders, trade union activists, religious leaders, and others from around the world who participated in our interviews in Moscow, St. Petersburg, Kazan, Tunis, Warsaw, Yangon, Bogota, Charlottesville, and Chicago. We are most grateful for their time and insights. Finally, we would like to thank our families for all their support in the years we spent researching and writing this book. Most importantly, if it were not for the support of our partners—Mila’s husband, Kevin Cope, and Adam’s wife, Britt Cramer—this would have not been possible.

1   

 Introduction A.  The Erosion of Rights in Russia After the collapse of the Soviet Union in 1991, Russian citizens experienced a dramatic improvement in their civil liberties.1 President Boris Yeltsin developed the nation into a free-​market economy through “economic shock therapy,” and opportunities sprang up for private entrepreneurs, media outlets, and civil society organizations alike. For the first time, a major independent television channel (NTV) reported critically on the government. New religious groups flooded the country, and the Russian Orthodox Church started to rebuild after decades of repression. The newfound freedoms were enshrined in Russia’s 1993 Constitution, which included a Western-​style bill of rights.2 As one observer noted, “for a second, Russia seemed almost like a normal country, where the ability to criticize and ridicule politicians is a sign of a healthy democracy.”3 The newfound liberties lasted about a decade. By the turn of the millennium, there was a widespread sentiment that the dismantling of the state had gone too far.4 This sentiment gave rise to Vladimir Putin’s election as president in 2000. Days before he took office, Putin released a 5,000-​word manifesto announcing his vison for restoring the state known as the “Millennium Message.” It argued, among other things, that the new rights were not authentically Russian and that distinctly Russian values—​such as “patriotism, collectivism, solidarity,” and derzhavnost (“the belief that Russia is destined always to be a great power”)—​were 1 David E. Hoffman, When Russia Glimpsed Freedom for a Moment, Wash. Post (June 10, 2016), https://​www.washingtonpost.com/​opinions/​when-​russia-​glimpsed-​freedom-​for-​a-​moment/​2016/​ 06/​09/​0ba58d8c-​0192-​11e6-​b823-​707c79ce3504_​story.html. 2 Anuradha M. Chenoy & Rajan Kumar, Re-​emerging Russia: Structures, Institutions and Processes 27 (2017) (“The Russian constitution of 1993, which is fundamentally different from the earlier Soviet constitutions, is modelled on the liberal democratic constitutions of the West”); Marcia A. Weigle, Russia’s Liberal Project: State-​Society Relations in the Transition from Communism 411 (2000). However, while the bill of rights is modeled on a Western template, the constitution also has illiberal features such a strong executive. See Chenoy & Kumar, supra, at 38 (“The Russian constitution . . . unduly favours the executive” who is empowered with “wide legislative, executive and emergency powers”); Richard Sakwa, The Struggle for the Constitution in Russia and the Triumph of Ethical Individualism, 48 Stud. in East Eur. Thought 115, 141 (1996) (observing that the “soft authoritarian elements embedded in the constitution could come into contradiction with its liberal provisions”). 3 Arkady Ostrovsky, The Invention of Russia 189 (2017). 4 Fiona Hill & Clifford G. Gaddy, Mr. Putin: Operative in the Kremlin 38 (2015). How Constitutional Rights Matter. Adam Chilton & Mila Versteeg, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190871451.001.0001

2  How Constitutional Rights Matter necessary to ensure Russia’s survival.5 Putin further argued that law, including the Constitution, was central to restoring state power.6 Putin’s project of restoring state power paved the way for a quick decline of the new civil rights and freedoms. The first freedom to fade was free speech. Putin quickly began to purge media outlets critical of the government. A prime target was the country’s leading independent television station, NTV, whose critical reporting (and weekly Kukly show, which depicted Putin as a puppet, big baby, and impotent groom) outraged Putin and his supporters. But in line with his nominal commitment to law, Putin did not shut down the station by force—​a move that would have certainly violated the Constitution. Instead, the government exploited the fact that the station was a for-​profit enterprise that could be bought. The station’s owner, oligarch Vladimir Gusinsky, became the target of tax raids and embezzlement charges, which Putin claimed were part of his anticorruption campaign.7 At the same time, state-​controlled Gazprom Media—​which was a minority shareholder and creditor in NTV’s parent company, Media-​Most—​started calling in its loans.8 In a heated April 2001 shareholder meeting, Gazprom took effective control over Media-​Most and reshuffled the board. To pay off his debts and to save the rest of his business empire, the embattled Gusinsky agreed to sell his share in Media-​Most to Gazprom, thereby allowing the station to fall under government control.9 NTV journalists protested the takeover by canceling all the entertainment programming that night, but the “business-​dispute” gained little traction.10 NTV’s programming swiftly changed,11 and many NTV journalists resigned in protest and joined Russia’s remaining private television network, TV-​ 6. Yet within months, TV-​ 6 suffered a similar fate to NTV:  a government-​ controlled minority shareholder forced the station to be liquidated for alleged poor financial performance.12 Thus, roughly a year after

5 Id. at 39–​40; William Partlett, Putin’s Artful Jurisprudence, 123 Nat’l Interest 35, 36 (2013). 6 Hill & Gaddy, supra note 4, at 196–​97. 7 Freedom in the World 2001: Russia, Freedom House (2001), https://​freedomhouse.org/​report/​ freedom-​world/​2001/​russia. 8 Sophie Lambroschini, Russia: Gazprom Takes Control of Independent NTV, RadioFreeEurope RadioLiberty (Apr. 3, 2001), https://​www.rferl.org/​a/​1096130.html. 9 Gusinsky later attempted to resist the sale, but was not successful. Instead, in May 2001, at Gazprom’s request, it got liquidated by the Moscow Arbitration Court because the holding company’s debts exceeded its assets. See Laura Belin, The Rise and Fall of Russia’s NTV, 38 Stan. J. Int’l L. 19, 39–​40 (2002). 10 Russian TV Takeover Sparks Protest, CNN (Apr. 4, 2001), http://​www.cnn.com/​2001/​WORLD/​ europe/​04/​04/​russia.television/​. 11 Susan B. Glasser & Peter Parker, Russian Network Seized in Raid, Wash. Post, Apr. 15, 2001, at A1. Media-​Most also shut down the independent newspaper Sevodnya and fired the staff of the weekly Itogi magazine. See Freedom in the World 2001: Russia, supra note 7. 12 Freedom in the World 2002: Russia, Freedom House (2002), https://​freedomhouse.org/​report/​ freedom-​world/​2002/​russia. The government-​controlled minority shareholder was LUKoil-​Garant

Introduction  3 Putin’s inauguration, Russia’s independent television news media were no more.13 The assault on free speech did not end there. In subsequent years, the government placed restrictions on “extremist” speech and reintroduced criminal libel laws.14 After nationwide protests against Putin’s re-​election in 2011, the government targeted speech on the internet and social media.15 The most important battle, however, was won quickly: months after Putin took office, the main television stations stopped criticizing the government. Though the Constitution protected free speech, Russians who turned on their television had no choice but to listen to government propaganda.16 But not all constitutional rights eroded at the same rate. Relative to free speech, it took much longer for religious freedom to deteriorate. This was not because the government did not want to regulate and control the many new religions that had entered the country since the fall of the Soviet Union. As early as 1997, the government attempted to increase control over religious groups by adopting the Law on Freedom of Conscience and Religious Associations.17 This law was a setback for religious freedom because it limited foreign religions’ ability to register and operate. Yet, concerted protests by the affected groups, armed with the Constitution and a Constitutional Court ruling enforcing the

(L-​G), the pension fund of the partly state-​owned oil company, LUKoil. L-​G filed a lawsuit to liquidate TV-​6 by invoking a rarely cited clause in Russian law on joint-​stock companies, stating that a company can be liquidated if its debt exceeds its assets for two consecutive years. The Moscow Arbitration Court affirmed the lawsuit in September 2001. See Belin, supra note 9, at 39–​40. 13 In June 2003, Russia’s last independent television network, TVS, was seized by the government, allegedly to settle the company’s debts. From this point, until the creation of TV Dozhd (Rain) in 2010, there were no politically independent television stations in Russia. Jill Dougherty, How the Media Became One of Putin’s Most Powerful Weapons, Atlantic (Apr. 21, 2015), https://​www. theatlantic.com/​international/​archive/​2015/​04/​how-​the-​media-​became-​putins-​most-​powerful-​ weapon/​391062/​. 14 See Federal’nyi Zakon RF o Protivodeistvii Ekstremistskoi Deiatel’nosti [Federal Law of the Russian Federation on Countering Extremist Activity (Extremism Law)], Rossiiskaia Gazeta [Ros. Gaz.], July 25, 2002. Criminal libel was reintroduced in 2012. Russia: Criminal Libel Law a Blow to Free Expression, Human Rights Watch (2012), https://​www.hrw.org/​news/​2012/​07/​16/​ russia-​criminal-​libel-​law-​blow-​free-​expression. 15 By the end of 2015, Russia was blocking access to roughly 20,000 websites. See Freedom in the World 2016:  Russia, Freedom House (2016), https://​freedomhouse.org/​report/​freedom-​world/​ 2016/​russia. Furthermore, Russian authorities vigorously used extremist laws to prosecute online speech. According to the SOVA Center, the number of social media users convicted of extremism offenses in 2015 was 216, in comparison with 30 in 2010. See World Report 2017: Russia, Human Rights Watch (2017), https://​www.hrw.org/​world-​report/​2017/​country-​chapters/​russia. 16 Government news increasingly turned into a form of popular entertainment and blurred the line between fact and fiction. See, e.g., Timothy Snyder, The Road to Unfreedom (2018). 17 O Svobode Sovesti i o Religioznikh Objedinenijah [On the Freedom of Conscience and Religious Associations], Sobranie Zakonodatel’stva Rossiskoi Federatsii [SZ RF] [Russian Federation Collection of Legislation] 1997, No. 39, Item 4465, art. 9.1 (Federal Law No. 125-​FZ). See generally Roman Lunkin, The Status and Challenges to Religious Freedom in Russia, in The Future of Religious Freedom: Global Challenges, 157, 157 (Allen D. Hertzke ed., 2012).

4  How Constitutional Rights Matter Constitution’s religious freedom provision, mostly neutralized the law’s harmful effects.18 Further state efforts to curtail religious freedom similarly failed. As we will describe in detail in ­chapter 9, at least two major legislative efforts to increase state control over religion failed entirely due to strong resistance from religious groups, including the Russian Orthodox Church, which reminded the government of its constitutional obligation to protect religious freedom. It took two more decades for religious freedom to be dealt a major blow. In 2016, the Duma passed “Yarovaya’s Law,” a package of amendments that dramatically increased state control over religion.19 Today, not much remains in practice of the Constitution’s generous religious freedom protection. But it took two decades for these restrictions to materialize, and to this day, religious groups are better off than civil society at large. This basic story is not unique to Russia. Putin is just one of many elected leaders who eliminated critical media outlets through a combination of bullying the owners and buying shares or airtime: Turkey’s Recep Erdogan,20 Hungary’s Viktor Orbán,21 and Mexico’s Peña Nieto,22 among others, have all done the same. And once the free press is neutralized, it becomes easier for governments to further restrict speech by harassing and arresting journalists or indicting citizens for their views on social media.23 Free speech is not the only constitutional right that is easily circumvented. For example, the torture in secret CIA prisons,24 the police abuse of migrants in France,25 and the Burmese military’s extrajudicial killings in Kachin State26 are all recent examples of governments flouting 18 Judgment of the Russian Federation Constitutional Court of Nov. 23, 1999 No. 16-​П, at 10 http://​www.ksrf.ru/​en/​Decision/​Judgments/​Documents/​1999%20November%2023%2016-​P.pdf. See also Lunkin, supra note 17, at 161 (observing that “ultimately the Constitution of the Russian Federation” and the “combined efforts of public figures and religious leaders (especially of the Protestant and Catholic denominations) helped to overcome almost all of the negative consequences of the Law of 1997, which otherwise seemed to banish religious freedom in Russia”). 19 Zakon Yarovoy [Yarovaya Laws], Federal’nyy zakon ot 06 iyulya 2016 g. № 374-​FZ [Federal Law of July 6, 2017 No. 374-​FZ] (Russ.), http://​kremlin.ru/​acts/​bank/​41108; Federal’nyy zakon ot 06 iyulya 2016 g. № 375-​FZ [Federal Law of July 6, 2017 No. 375-​FZ] (Russ.), http://​kremlin.ru/​acts/​bank/​ 41113. 20 Turkish Media Group Bought by Pro-​Government Conglomerate, N.Y. Times (Mar. 21, 2018), https://​www.nytimes.com/​2018/​03/​21/​world/​europe/​turkey-​media-​erdogan-​dogan.html. 21 Patrick Kingsley & Benjamin Novak, Hungarian Site Shows How a Free Press Can Die, N.Y Times, Nov. 25, 2018, at A1. 22 Azam Ahmed, Mexico Spends Big on Ads to Tame the News Media, N.Y Times, Dec. 25, 2017, at A1. 23 Freedom in the World 2018:  Democracy in Crisis, Freedom House (2018), https://​freedomhouse.org/​report/​freedom-​world/​freedom-​world-​2018. 24 Elizabeth Sepper, The Ties That Bind: How the Constitution Limits the CIA’s Actions in the War on Terror, 81 N.Y.U. L. Rev. 1805, 1843 (2006). 25 Matthias Blamont, Human Rights Watch: French Police Use Excessive Force on Calais Migrants, Thomson Reuters (July 25, 2017), https://​www.reuters.com/​article/​us-​europe-​migrants-​ calais-​idUSKBN1AB00Z. 26 Libby Hogan, Slow Genocide:  Myanmar’s Invisible War on the Kachin Christian Minority, The Guardian (May 13, 2018), https://​www.theguardian.com/​world/​2018/​may/​14/​slow-​ genocide-​myanmars-​invisible-​war-​on-​the-​kachin-​christian-​minority.

Introduction  5 their constitutional obligations. As it turns out, it is often remarkably easy for governments to ignore constitutional rights. Yet, the Russian story also raises a puzzle: why was the rate of decline so different for free speech and religious freedom? We believe that the key explanation lies in the actions of religious groups, which resisted rights encroachment at every turn. These religious groups were not established for the purpose of protecting religious freedom; yet, when the government attempted to encroach on their rights, they did what they could to preserve their ability to worship freely. They were also well positioned to resist rights encroachment: they had a loyal member base with a common identity, charismatic leaders, and, unlike television stations, they could not be easily bought. Perhaps equally important, the Constitution provided them with a powerful tool to resist harmful government initiatives. Religious groups would frequently remind the government of the Constitution’s protection of religious freedom, and, if need be, challenge it in court. These calls did not go unheard: President Putin wanted to be seen as rebuilding the state based on law, and organized religions crying foul was hard to ignore. Thus, because the Constitution was crucial to Putin’s project of state-​ building, it could be used strategically by religious groups across the country. By contrast, there was no equivalent resistance from organizations committed to free speech. Private television stations were simply acquired (or more precisely: taken over by government-​controlled minority shareholders). And while some individual journalists resigned in protest and called for resistance, they ultimately lacked the organizational clout to make an impact. Finally, the Russian example reveals that even committed religious groups armed with the constitution can eventually lose. Religious groups were able to slow down Putin’s ambitions, but they did not stop them. Part of their success from invoking the Constitution occurred because the document mattered to Putin. It gave the president strong powers and provided a blueprint for the state he envisioned to build.27 Moreover, with some effort, Putin could maneuver around the Constitution’s obstacles. A  perfect example of such maneuvering was Putin’s response to constitutional term limits. Because the president cannot serve more than two consecutive terms, Putin moved into the prime minister’s position in 2008 and allowed his loyal associate, Dmitry Medvedev, to serve as

27 The 1993 constitutional crisis started with President Yeltsin dissolving parliament and ended with the military laying siege to it. This event showed the danger of ignoring the constitution entirely. The crisis is a major story in itself. In a nutshell, Yeltsin had dissolved parliament without having the constitutional authority to do so; hours later, Yeltsin’s arch-​rival, Vice President Alexander Rutskoi, declared himself president of Russia and was sworn in by the parliament, effectively impeaching Yeltsin. Yeltsin and parliament then both called for new presidential elections on different dates and both unveiled new competing constitutions. See Margaret Shapiro, Yeltsin Dissolves Parliament, Orders New Vote, Wash. Post, Sept. 22, 1993, at A1.

6  How Constitutional Rights Matter “placeholder President.”28 After Medvedev’s term, Putin reclaimed the presidency in 2012. The forced hiatus must have annoyed him, but it did not stand in the way of his objectives for remaking Russia. A similar insight applies to the Constitution’s protection of religious freedom. Repressing religion required playing by the Constitution’s rules, which took time. Yet bringing the Russian Orthodox Church onboard, along with using a few procedural loopholes when passing laws of dubious constitutionality, eventually did the trick. Ultimately, the Russian experience illustrates legendary U.S. diplomat Henry Kissinger’s infamous statement in a leaked diplomatic cable that “the illegal we do immediately, the unconstitutional takes a little longer.”29 Kissinger was talking about his own country, but it is easy to imagine Putin agreeing with his long-​term confidant Kissinger.30 But Putin’s corollary might be that the unconstitutional takes longer only when organized groups of citizens are determined to mobilize to protect their rights. If not, even the unconstitutional can be done immediately.

B.  Theory and Findings This book explores whether and how constitutional rights matter. That is, if a country includes a de jure right in its constitution, is that likely to translate into better de facto protection of that right? For example, if a country constitutionalizes free speech, does that improve respect for free speech in practice? Or when a constitution includes the freedom of religion, do people enjoy greater religious freedoms as a result? And when a constitution bans torture, do incidents of torture decline? We approach these questions by using a range of different empirical methods, including global statistical analysis, case studies, and survey experiments. Our exploration of the global patterns of rights violations reveals three core insights.

28 Angela Charlton & Vladimir Isachenkov, Putin’s Dilemma:  Scrap Term Limits or Choose a Successor, Associated Press (Mar. 19, 2018), https://​www.apnews.com/​f447c4e387a54298925d30 7850f68468. 29 This quote comes from a March 1975 meeting between Kissinger, then secretary of state, and Melih Esenbal, then minister of foreign affairs of Turkey, in the Foreign Minister’s Office in Ankara, Turkey. When Esenbal made a proposition that then U.S. ambassador to Turkey, William Macomber, said was illegal, Kissinger noted, “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter] ‘But since the Freedom of Information Act, I’m afraid to say things like that. We’ll make a major effort.’ ” See Memorandum of Conversation, Aid Cut-​Off:  Cyprus, WikiLeaks Public Library of US Diplomacy (Mar. 10, 1975), https://​wikileaks.org/​plusd/​cables/​P860114-​1573_​MC_​ b.html#efmCS6CWs. 30 Nahal Toosi & Isaac Arnsdorf, Kissinger, a Longtime Putin Confidant, Sidles Up to Trump, Politico (Dec. 24, 2016), https://​www.politico.com/​story/​2016/​12/​trump-​kissinger-​russia-​putin-​232925.

Introduction  7 Our first core finding is that constitutional rights by themselves often do little to impede governments’ efforts to repress their citizens’ rights. Free speech, the prohibition of torture, the freedom of movement, the right to education, and the right to healthcare are all rights for which we do not find a systematic association with improved outcomes. Our second core finding is that some rights, once constitutionalized, are harder to violate than others. Specifically, we find that the freedom of religion, the right to unionize, and the right to form political parties are systematically associated with improved rights outcomes. What these rights have in common is that they are meant to be practiced by, or within, an organization. Their organizational character means that there will be organizations—​ religious groups, trade unions, and political parties—​that have a vested interest in protecting these rights. As a result, these organizational rights can become self-​enforcing. Our third core insight is that including rights in a constitution is not a panacea. When a government is determined to erode the protections provided by certain rights, they are usually eventually successful. We develop a theoretical account to explain these findings.31 We start from the premise that including a right in a constitution, by itself, is rarely enough to change government behavior. The ostensible goal of constitutional rights is to constrain government power, but a typical government has a near monopoly on force and possesses dramatically more power than the citizens that constitutional rights seek to protect. When a government’s interest and a constitutional rule are opposed, therefore, it is not obvious why a government would respect constitutional boundaries that it has the power to ignore. While private contracts are enforced by powerful third-​parties—​that is, governments—​there is no equivalent external actor to enforce the constitutional contract between the government and the people.32 Of course, these insights are not new: they trace back at least to James Madison, who famously postulated that the rights in the U.S. Constitution would constitute no more than “parchment barriers.”33 The lack of an external enforcement mechanism does not have to be fatal. In some cases, constitutional rules align with government interests, so the government is motivated to uphold them. In other cases, governments comply with the constitution because noncompliance will create large political costs. One scenario in which constitutional rights violations are costly is when citizens act together to punish a government for such violations, through protests, electoral mobilization, litigation, or civil disobedience. When citizens can show they are 31 Chapter 2 provides an expanded version of the argument we present in this section and includes extensive citations. Very limited citations are provided here. 32 See, e.g., Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791 (2009). 33 Letter from James Madison to Thomas Jefferson, (Oct. 17, 1788), in 11 The Papers of James Madison 295, 297 (Robert A. Rutland & Charles F. Hobson eds., 1977).

8  How Constitutional Rights Matter likely to successfully impose these political costs, governments may hesitate to violate rights. But citizens trying to punish their government for rights violations must overcome two obstacles. First, they need to agree with each other that a certain government action constitutes a constitutional violation. This is a coordination problem. For example, diverse citizens will have different views about the type and level of restrictions on free speech they deem acceptable. To punish the government, they must first agree on which actions cross the line. The constitution can help,34 but it is often too indeterminate to make such judgment calls precisely. Second, assuming citizens can agree on what actions constitute 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. Any citizen considering attending a protest march, for example, might be tempted to stay home if marching entails legal or safety risks. If others do the protesting, citizens can reap the benefits without having to take the day off or putting themselves in jeopardy. If a citizen shows up alone, the government can easily retaliate against this citizen. 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.35 Dedicated organizations can help solve both of these problems. For the coordination problem, 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. For the collective action problem, organizations can assure would-​be protesters and other public dissenters that they will not be alone. Successful organizations have both a member base on which they can call and expertise in political and legal advocacy, allowing them to develop an effective response. Dedicated organizations can thus make constitutional violations less costly for citizens to challenge, and thus more difficult for the government to enact. But the existence of organizations that challenge constitutional violations cannot be taken for granted. Some rights 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. These are what we will call organizational rights. Examples include the right to unionize and the right to form political parties. 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 34 See, e.g., Barry Weingast, Political Foundations of Democracy and the Rule of Law, 91 Am. Pol. Sci. Rev. 245 (1997). 35 See, e.g., Russell Hardin, Collective Action (1982).

Introduction  9 typically (though not exclusively) practiced with an organization. Although it is possible to practice religion individually, most practitioners across faiths today practice their religion collectively, as part of a congregation of fellow believers. None of these organizations—​religious groups, unions, and parties—​are established for the purpose of protecting constitutional rights. Yet, when their rights are encroached upon, they have both the incentives and means to resist. And when they do resist, they can be a force to be reckoned with. Notably, they are all membership-​based organizations whose members derive substantial benefits from their membership and are therefore loyal to the organization, and will heed the call for collective action. They also tend to have strong organizational capacity and substantial expertise in political advocacy. Indeed, their sheer presence, combined with the credible threat of resistance, might be enough to deter rights violations. By comparison, when the exercise of a right involves a primarily individual activity, dedicated organizations are less likely to exist. And when they do, they are usually weaker than religious groups, trade unions, and political parties. Free speech offers an example: a person does not necessarily require a free speech organization to express her views. Especially when the government shows little desire to suppress speech, demand for such organizations will be low. This does not mean that we never see human rights organizations dedicated to the protection of free speech or other individual rights. For instance, the American Civil Liberties Union (ACLU) and the National Rifle Association (NRA) are well-​known American examples of such organizations. Other examples include Dejusticia in Colombia, the Kenyan Human Rights Commission, Centro de Estudios Legales y Sociales in Argentina, and Connectas in Brazil. Yet, since these organizations are not necessary to practice rights, they depend on members and founders specifically dedicated to rights protection. Relatively few people contribute to organizations that do not benefit them directly. This feature can make dedicated human rights organizations weaker, on average, than organizations that are established to practice a right, like religious groups or trade unions. (Of course, not all individual rights organizations are weak—​our claim is that they are more likely to be so.) Organizations that seek to protect rights are aided by the constitution. The ability to frame certain government actions as constitutional violations gives powerful leverage to organizations whose rights are encroached upon. In theory, this is not only true for religious groups, unions, and political parties, but also for dedicated human rights organizations. All these organizations can use the constitution to call out violations and impose political costs, for example through lobbying, or protests or other forms of civil disobedience. Under some circumstances, they can also attempt to litigate and call upon courts to clarify and

10  How Constitutional Rights Matter denounce violations. Thus, the constitution can be a powerful instrument when used strategically by dedicated organizations. While all organizations can potentially use the constitution to their advantage, the organizations that are necessary to practice a right enjoy an additional constitutional benefit: they are directly protected and recognized by the constitution as religious groups, trade unions, or political parties. This direct protection as organizations allows them to better resist rights encroachment. Around the world, governments are increasingly placing restrictions on dedicated human rights organizations, a much-​discussed phenomenon referred to as “the closing space of civil society.”36 But since the ability to organize freely and perform certain activities (like collective bargaining, political organizing, and religious worship) is part and parcel of the constitutional rights that protect unions, political parties, and religious groups, these organizations possess stronger constitutional leverage to oppose restrictions on their core activities than dedicated human rights organizations. Their direct constitutional protection also allows them to secure access to legal personality, which allows them to engage in basic transactions (e.g., open a bank account, sign a lease, sue and be sued), thus lowering the cost of organizing. Dedicated human rights organizations, by contrast, have less leverage to resist restrictions on their core activities; they may be able to rely on the freedom of association, but this broad right is more easily curtailed than specific constitutional protections for specific organizations. We believe that this basic story—​of religious groups, trade unions, and political parties using the constitution to protect their rights—​does not necessarily depend on whether countries are democratic or have independent courts. Contrary to popular belief, constitutions often matter to today’s autocrats. Perhaps the main reason this is true is that the nature of authoritarianism has changed profoundly since the 1990s. Many modern autocrats hold elections and maintain nominally democratic institutions, including constitutional courts and liberal bills of rights. They pay lip service to these democratic norms and institutions to appear legitimate. At the same time, they also use the constitution to stack the deck in their favor and to progressively amplify their own power. The result, in many cases, is a constitution that simultaneously grants sweeping executive power and contains a liberal bill of rights. Because such constitutions benefit those in power, they matter to authoritarian leaders in the mold of Vladimir Putin, Recep Tayyip Erdoğan, and Viktor Orbán. But because they also contain generous rights provisions, well-​organized groups of citizens can use them to their advantage. When a government wants to be seen as playing by the rules of the constitution, organized groups of citizens that call the government out 36 Thomas Carothers & Saskia Brenchmacher, Closing Space: Democracy and Human Rights Support Under Fire 5 (2014).

Introduction  11 for violations are hard to ignore. After all, undermining the constitution means undermining the basis of leaders’ own powers. The result is that constitutional rights can be used strategically by dedicated organizations in autocratic and democratic regimes alike, and can even make a difference in places without strong and independent judiciaries. Conversely, democracies do not always uphold rights. Even in well-​ functioning democracies, citizens struggle to impose electoral accountability on rights-​violating governments. Most importantly, the electorate needs to know about violations and be persuaded that enforcement action is needed. Creating this awareness requires information campaigns and strategic rights framing, which, in turn, requires dedicated organizations. Likewise, the mere existence of an independent judiciary is not enough to ensure that constitutional rights are enforced. While courts can render authoritative rulings on whether rights have been violated, ensuring that courts are presented with rights violations requires organizational capacity. Moreover, without broad social movements behind the litigation, rights-​protecting decisions can remain unimplemented. Our claim, therefore, is that the key to rights enforcement is the strategic use of the constitution by dedicated organizations, not regime type or judicial independence. But we also note that even strong and committed organizations armed with the constitution are no guarantee for success. When governments are sufficiently dedicated to repression, they are likely to get their way eventually. Notably, leaders have become increasingly savvy at undermining rights without conspicuously violating the constitution. To illustrate, instead of placing viewpoint restrictions on free speech, leaders like President Putin have found it easier to simply buy critical media outlets. While buying the media undermines free speech, it is not clear that it violates the constitution, which makes it difficult to mobilize for its enforcement. Other times, leaders have ultimately prevailed by simply reattempting the same laws and initiatives over again, with just minor tweaks to make the violations seem less blatant, until they finally succeed. Regardless of the strategy, given enough time, leaders often get their way. It is hard to overstate the importance of this reality. Constitutional rights are not a panacea. 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.37 A common account is that constitutions are like these ropes: they restrain governments that are tempted to abandon course. But our research suggests that this is not a great metaphor 37 Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (1984). For the story of Ulysses and the sirens, see Homer, The Odyssey of Homer 189–​90 (Richmond Lattimore trans., Harper & Row 1967).

12  How Constitutional Rights Matter for constitutional rights. Constitutional rights are less like firmly tied ropes and more like speedbumps. When used strategically by organized groups of citizens, rights slow down governments that seek to transgress their powers.38 There is no doubt that these speedbumps can be important. They may allow organizations to fight another day. But when governments are committed to curtailing rights, constitutional rights are usually unable to stop them.

C. Our Approach We are not the first scholars to study the impact of constitutional rights empirically. A handful of prior studies have explored the effect of rights using quantitative data.39 However, most of these studies examine only a small set of countries, cover short time periods, and make limited efforts to sort out thorny causal questions. Other studies have explored the question through case studies.40 These qualitative studies also are focused on a limited set of countries, and it is unclear to what extent their findings generalize. Regardless, these prior studies (which we review in ­chapter 3) do not provide a consistent answer on whether and how constitutional rights matter. Our goal is to go beyond prior research on the topic, including our own, and provide the most comprehensive answer to date on how constitutional rights matter. Answering this question is not as straightforward as it might seem. Simply studying whether countries with a given constitutional right regularly violate that right does not answer the question. It is easy to point out, for instance, that Russia ignores its constitutionally guaranteed free speech right, or that only a quarter of countries that constitutionally protect free speech protect the right in practice.41 But it is much harder to establish whether Russia would have restricted speech even further had the right not been enshrined in the constitution. In other words, the question we seek to answer is whether countries with a

38 We are not the first to use this metaphor. See, e.g., James D. Best, Constitutional Speed Bumps, What Would the Founders Think?, http://​www.whatwouldthefoundersthink.com/​ constitutional-​speed-​bumps (last visited Jan. 18, 2019). 39 See, e.g., Frank B.  Cross, Constitutions and Religious Freedom (2015); Linda Camp Keith, Political Repression: Courts and the Law (2011); Frank Cross, The Relevance of Law in Human Rights Protection, 19 Int’l Rev. L. & Econ. 87 (1999); Christian A. Davenport, Constitutional Promises and Repressive Reality:  A Cross-​National Time-​Series Investigation of Why Political and Civil Liberties Are Suppressed, 58 J. Pol. 627, 648 (1996); Linda Camp Keith et al., Is the Law a Mere Parchment Barrier to Human Rights Abuse?, 71 J. Pol. 644, 658 (2009). 40 See, e.g., Charles Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (1998). 41 David S. Law & Mila Versteeg, Sham Constitutions, 101 Cal. L. Rev. 863, 913 (2013) (finding that a mere quarter of countries that constitutionally guarantee free speech fully respect it in practice).

Introduction  13 constitutional right are better off than they would have been without this right (or, conversely, whether countries without a right would have been better off with it). Yet even comparing the rights records of countries with and without a right, or a country’s record before and after the adoption of the right, is not an adequate research design:  countries with a right differ from those without along many dimensions, and moments of adoption are often accompanied by many deep societal changes. As a result, pinpointing the causal effect of constitutional rights is difficult; some would say impossible.42 While we are mindful of these difficulties, our take is that the question is too important to leave unanswered simply because there is no foolproof way of doing so. Thus, instead of letting perfect be the enemy of the good, we opt to use several different methods to study whether constitutional rights make a difference. None of these methods, by themselves, solve the deep methodological problems inherent in answering this question; yet, by adopting a range of methods, we can triangulate onto a more complete picture of the effect of constitutional rights than we could with any one single method. First, we use global statistical analysis. Drawing on constitutional rights data for 194 countries over sixty years, we conduct statistical analysis to track whether constitutionalizing a right was associated with improved rights practices. We do so using what we believe to be the best available data and methods to undertake such an analysis for eight rights: (1) freedom of speech, (2) prohibition against torture, (3) freedom of movement, (4) right to education, (5) right to healthcare, (6) freedom of religion, (7) right to unionize, and (8) right to form political parties. We have previously subjected our data, methods, and primary findings to peer review at social science journals, including the American Journal of Political Science, the Journal of Legal Studies, and the Journal of Law and Economics.43 Second, to better understand the mechanisms through which rights make a difference, or fail to do so, we conducted five illustrative, or “mini,” case studies. For civil and political rights, we spent two weeks in Poland talking to lawyers, civil society activists, journalists, and judges about how free speech is under attack and whether and how the Polish Constitution has affected these developments. For social rights, we spent a week in Colombia to interview lawyers, civil society activists, judges, and politicians about whether and how the 42 Holger Spamann, Empirical Comparative Law, 11 Ann. Rev. L. & Soc. Sci. 131, 138 (2015) (noting that “comparative evidence alone will hardly ever be sufficient to establish a causal claim and that statistical methods that purport to do so are likely to do more harm than good in comparative settings”). 43 See Adam Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. Pol. Sci. 575 (2016); Adam Chilton & Mila Versteeg, The Failure of Constitutional Torture Prohibitions, 44 J. Legal Stud. 417 (2015) [hereinafter Chilton & Versteeg, Failure]; Adam Chilton & Mila Versteeg, Rights without Resources:  The Impact of Constitutional Social Rights on Social Spending, 60 J.L. & Econ. 713 (2017); see also Adam S. Chilton & Mila Versteeg, International Law, Constitutional Law, and Public Support for Torture, Res. & Pol., Jan.–​Mar. 2016, at 1, 4; Adam Chilton & Mila Versteeg, Courts’ Limited Ability to Protect Constitutional Rights, 85 U. Chi. L. Rev. 293 (2018).

14  How Constitutional Rights Matter Constitution’s protection of healthcare has affected the delivery of actual healthcare.44 For religious freedom, we spent three combined weeks in Moscow, Kazan, and St. Petersburg, Russia, interviewing politicians, policymakers, judges, and members of religious groups about whether and how the constitutional protection of freedom of religion helped safeguard religious freedom. For union rights, we spent a week in Tunisia interviewing union leaders and civil society activists about whether and how the Nobel Prize–​winning trade union that drafted the constitution has used it to promote its political goals. For the right to form political parties, we spent two weeks in Yangon, Myanmar, interviewing and observing policymakers, politicians, and judges about whether and how the constitutional right to form political parties facilitated the country’s transition to a multiparty system. In addition, we interviewed judges and constitutional experts from around the world when they visited our home universities, the University of Chicago and the University of Virginia. In total, we interviewed close to one hundred people about constitutional rights enforcement. Third, to understand how the public at large responds to constitutional rights violations, we fielded survey experiments in Turkey and the United States. In Turkey, we employed a survey firm that conducted 1,335 face-​to-​face interviews with a representative sample of the population. In this survey, we asked people about their views on the constitution as it related to the Turkish government’s Wikipedia ban. In the United States, we administered an online survey experiment to 2,030 Americans and asked them about their view of the U.S. Constitution as it related to government torture of suspected terrorists. The goal of these experiments was to gauge how ordinary people respond to being told about constitutional rights violations. Finally, we conducted an expert survey. To understand whether rights are also protected outside of the text of the Constitution—​that is, not only in the Large-​C but also the small-​c constitution—​we surveyed 203 constitutional law experts from 103 countries about the nature of constitutional law in their country. We also asked them to evaluate whether they believed the rights in the constitution were respected. These findings are also published on our newly launched website, https://​www.constitutions.org.

D.  Qualifications Before continuing, we need to make several qualifications about the limits of our argument and findings. First, our focus is on whether constitutional rights 44 Mila conducted the case studies in Poland, Colombia, Myanmar, and Russia; Adam conducted the case study in Tunisia.

Introduction  15 improve respect for rights, not whether constitutions more generally do. When a constitution is drafted, there are many decisions to make. For example, should the constitution establish a parliamentary or presidential system? Or should the constitution provide unitary power for the central government or reserve power for subnational units? Which rights to enumerate is just one of these decisions. Even if constitutionalizing a right does not improve respect for that right in practice, it is possible that other features of constitutions could. For example, our research suggests that constitutional torture prohibitions have failed to reduce torture, but it is possible that governments that place more effective structural checks on executive power may torture less.45 Second, we explore whether constitutional rights improve protection of those specific rights; we do not consider whether better protection of constitutional rights improves overall welfare. Yet it is possible that including a de jure right in a constitution improves de facto protection of that specific right, while not improving or even worsening overall welfare. For instance, in his famous work on collective action, Mancur Olson argued that “[o]‌n balance, special-​interest organizations and collusions reduce efficiency and aggregate income in the societies in which they operate and make political life more divisive.”46 The right to unionize illustrates this point. We find that including a constitutional right to unionize in constitutions is likely to improve protection of labor rights. It does not necessarily follow, however, that improved union rights in turn improve the welfare of society generally, or even that of workers themselves. Instead, economic research on the effects of unions is mixed. Although some prominent research has suggested that unions improve overall welfare by increasing wages and decreasing inequality, other research has suggested that the effects of unions might be negative.47 In one high-​profile example of this concern (explored in depth in ­chapter 10), the Tunisian General Labor Union—​which is more widely

45 Compare Chilton & Versteeg, Failure, supra note 43 with Yonatan Lupu, Legislative Veto Players and the Effects of International Human Rights Agreements, 59 Am. J. Pol. Sci. 578 (2015) (finding that the International Covenant on Civil and Political Rights (ICCPR), an international human rights treaty, is more likely to be effective in countries with more legislative veto players). 46 Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities 47 (1982). 47 For a review of the economics literature on the effect of unionization in the United States, see Barry T. Hirsch, Unions, Dynamism, and Economic Performance, in Research Handbook on the Economics of Labor and Employment Law 107 (Michael Wachter & Cynthia Estlund eds., 2012). For evidence that unions improve welfare, see Richard B. Freeman & James L. Medoff, What Do Unions Do? (1984). See also Daron Acemoglu et al., Deunionization, Technical Change, and Inequality, 55 Carnegie-​Rochester Conf. Series on Pub. Pol’y 229 (2001). For evidence that the welfare effects of unions are negative or null, see John DiNardo & David S. Lee, Economic Impacts of New Unionization on Private Sector Employers: 1984–​2001, 119 Q.J. Econ. 1383 (2004). But see Brigham R.  Frandsen, The Surprising Impacts of Unionization:  Evidence from Matched Employer-​ Employee Data (Working Paper, 2014), https://​economics.byu.edu/​frandsen/​Documents/​unioneffects.pdf.

16  How Constitutional Rights Matter known by its French acronym UGTT (Union Génerale Tunisienne du Travail)—​ shared the Nobel Peace Prize in 2015 for its role in the drafting of the country’s post–​Arab Spring Constitution; yet, by 2017 there was widespread concern that the UGTT’s excessive authorization of strikes was hurting Tunisia’s economic growth.48 We do not delve into these debates over whether certain organizations help or hurt society. Our research is agnostic as to whether unions promote economic equality or exacerbate inefficiency, whether political parties improve public discourse or cause faction and polarization, or whether religious organizations promote ethical behavior or discourage critical thinking. Instead our question is more modest: whether specific constitutional rights improve specific outcomes. Third, we acknowledge that our theoretical account, developed in ­chapter 2, may not explain constitutional effectiveness in the future. Our argument depends in part on the dynamic of collective mobilization, and this dynamic can change in light of globalization, new geopolitical alliances, and technological advancements. For instance, in part due to globalization and neoliberal reforms, trade unions have weakened substantially since the 1990s.49 And in part due to a growing disillusionment with the political establishment, along with the rise of new forms of communication, political parties do not command the loyalty they once did.50 We need to look no further than the 2017 French elections and the sweeping victory of En Marche, a new political party that emerged practically overnight, to see this logic in action.51 These developments raise the possibility that trade unions and political parties may be less able to protect rights going forward. (Religion, by contrast, is actually on the rise globally, and religious groups may thus be better able to protect religious freedoms in the future.)52 Additionally, social media is making it easier to organize without formal organizations. For example, mass protests in response to the political, social, and economic crisis in Venezuela that began in 2015 were organized almost entirely

48 Micha Benoit-​Lavelle, Tunisia’s Celebrated Labor Union Is Holding the Country Back, Foreign Pol’y (July 20, 2016), http://​foreignpolicy.com/​2016/​07/​20/​tunisias-​celebrated-​labor-​union-​is-​ holding-​the-​country-​back/​. 49 Why Trade Unions Are Declining, Economist (Sept. 29, 2015), https://​www.economist.com/​ blogs/​economist-​explains/​2015/​09/​economist-​explains-​19. 50 Ingrid van Biezen et  al., Going, Going,  .  .  . Gone? The Decline of Party Membership in Contemporary Europe, 51 Eur. J. Pol. Res. 24 (2012); David Lightman, Parties Control the Mechanics of Elections, but Can’t Command Loyalty, Nat’l Memo (Feb. 2, 2016), http://​www.nationalmemo. com/​parties-​control-​the-​mechanics-​of-​elections-​but-​cant-​command-​loyalty/​. 51 Emmanuel Macron’s Democratic Revolution, Economist (June 17, 2017), https://​www.economist.com/​news/​briefing/​21723393-​after-​defying-​expectations-​transforming-​french-​politics-​his-​ next-​task-​do-​same. 52 See Todd M. Johnson & Brian J. Grim, The World Religions in Figures 10 (2013) (documenting the growth of religions between 1910 and 2010).

Introduction  17 through Twitter.53 The importance of Twitter for organizing protests is hardly unique to Venezuela: many major protests around the world—​from the Tahrir protests in Egypt to the Gezi Park protests in Turkey—​are primarily known by their hashtags, such as #jan25 for Tahrir Square or #direngezi for Gezi Park. These developments raise the possibility that social media has reduced the need for formal organizations to orchestrate collective action. That said, research has found that ad hoc social movements organized through social media face meaningful disadvantages compared with those faced by formal organizations.54 Ad hoc movements lack official leaders to decide and negotiate on the movement’s behalf, they do not benefit from long-​term strategic planning, and they lack institutionalized channels of communication with the government. There is also some evidence that governments are becoming increasingly effective at cracking down on social media movements. Studies show how the Chinese government systematically censors tweets calling for collective action in a direct effort to thwart popular mobilization.55 Overall, much is still unknown about whether and how social media has the potential to change the basic story that we tell in this manuscript; but we acknowledge that it might. Fourth, we want to emphasize that our finding that some individual rights do not shift government behavior does not mean that these rights never matter. Our argument is that it is difficult for disconnected citizens to enforce these rights. Our empirical findings lend support for this argument in that we do not find an effect for these rights when we explore global patterns of rights violations. At the same time, we are of course aware that there are numerous individual right success stories, such as when the U.S. Supreme Court desegregated schools,56 the South African Constitutional Court ordered the provision of antiretroviral drugs,57 or the Indian Supreme Court ordered the serving of midday meals at schools.58 Success stories like these are likely contingent on certain conditions being met. For example, some have suggested that social rights, such as the right to healthcare and education, are most likely to make an impact when there are: (1) independent courts, (2) that are also willing to pursue an activist 53 See Susan B. Glasser, What It’s Like to See a Democracy Destroyed, Politico (Aug. 7, 2017), http://​ w ww.politico.com/​ magazine/​ story/​ 2 017/​ 0 8/ ​ 0 7/ ​ d emocracy- ​ d ie- ​ venezuela- ​ i mplosion​hannah-​dreier-​215467. 54 Zeynep Tufekci, Twitter and Tear Gas:  The Power and Fragility of Networked Protest (2017). 55 See Gary King et  al., How Censorship in China Allows Government Criticism but Silences Collective Expression, 107 Am. Pol. Sci. Rev. 326 (2013); Gary King et  al., How the Chinese Government Fabricates Social Media Posts for Strategic Distraction, Not Engaged Argument, 111 Am. Pol. Sci. Rev. 484 (2017). 56 Brown v. Board of Education, 347 U.S. 483 (1954). 57 Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC) (S. Afr.). 58 Daniel M. Brinks & Varun Gauri, The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights, 12 Perspectives on Politics 375, 385 (2014).

18  How Constitutional Rights Matter economic justice agenda, and (3) that are further aided by civil society organizations that strategically litigate and push for implementation.59 In this book, we make only limited attempts to explore such “scope conditions.”60 We perform an initial exploration of whether constitutional rights are better enforced in countries that are democratic or have independent courts, but find no evidence that they do.61 Yet we acknowledge that there might be other, more complex, pathways to effectuate individual rights that we have not explored here. Fifth, this book focuses on three organizational rights (the freedom of religion, the right to unionize, and the right to form political parties), but we recognize that there might be other examples. Indeed, the logic of our story—​of organizations with a vested interest in a right mobilizing for its protection—​potentially applies to other rights as well. Whenever a constitution grants rights to organizations, these organizations will likely be motivated to use the constitution to protect their rights. To illustrate, consider the example of corporations in the United States. The U.S. Supreme Court has famously extended constitutional rights to corporations, and corporations have since used the constitution to exercise and defend their rights.62 If corporate rights were a common feature of constitutions (which they currently are not), we would expect those rights to be hard to violate and associated with better respect for those rights in practice. Relatedly, we acknowledge that the distinction between individual rights and organizational rights is not always sharp. Notably, some of the rights we characterize as individual rights may have an organizational dimension. An important example is free speech. While the freedom of expression grants all individuals the right to freely express their opinion, the right is commonly effectuated through media organizations, which enable the widespread distribution of these opinions. At least in theory, media organizations can mobilize to protect free speech when the government seeks to restrict it. In practice, however, media organizations often lack the incentives and means to do so, chiefly because they have a different organizational structure than religious groups, unions, and political parties. In many countries, the main media organizations are publicly owned, which makes them unlikely to resist the government. Where media organizations are privately owned, their financial incentives may not square with protecting free speech. 59 Id. See also Mila Versteeg, Can Rights Combat Economic Inequality? Harv. L. Rev. (forthcoming 2020). 60 See William A Harris, On “Scope conditions” in Sociological Theories, 46 Social & Economic Theories 123 (1997). 61 We should clarify that democracy and judicial independence are both associated with higher levels of rights protection, but that we do not find evidence that countries with high levels of democracy or judicial independence do a better job at protecting the rights enshrined in the constitution. 62 See Citizens United v. the Federal Election Commission, 130 S. Ct. 876 (2010) (granting corporations free speech rights); Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014) (granting corporations religious rights).

Introduction  19 What is more, governments are able to provide powerful incentives to silence criticism by making the media financially dependent on government support. In addition, media organizations lack a member base they can call upon to resist the government. For these reasons, we do not treat free speech as an organizational right. Likewise, we explore the possibility that schools and hospitals can mobilize for the protection of the right to health and education, respectively, but conclude that they often lack the incentives or the means to do so. We further acknowledge that individual rights can sometimes have “protective constituencies”; that is, organized groups of citizens that benefit especially from a particular right and are therefore motivated to protect it.63 One well-​ known example is the National Rifle Association in the United States, which has frequently undertaken action to protect the Constitution’s right to bear arms (an individual right). When rights are supported by protective constituencies, they become harder to violate. Whether and how protective constituencies form depends on a range of country-​specific circumstances, but does not necessarily flow from the nature of the right itself (in the example of the right to bear arms, it requires the presence of citizens that feel particularly strongly about gun-​ ownership, and whether this is the case likely varies from country to country). While we acknowledge that the presence of protective constituencies can enhance rights protection in the same way that organizations do, we do not study them in this book. Sixth, we acknowledge that constitutional rights may be valuable even if they do not have a measurable impact on rights protection. One possible interpretation of our findings is that enumerated rights that fail to constrain in practice serve no purpose.64 Yet there are other reasons for including rights in constitutions. Some of these are instrumental. For example, the inclusion of rights can move constitutional negotiations forward by placating certain groups. In the United States, the addition of the Bill of Rights has been compared to “throwing a tub to a whale.”65 As the argument goes, just as sailors would sometimes throw an old tub (or barrel) to whales to keep them entertained and distracted from harming ships, the federalists agreed to the inclusion of a bill of rights to distract antifederalists from pursuing amendments that would harm the Constitution.66 Others have documented 63 Protective constituencies are the object of study of a body of political science literature sometimes described as “historical institutionalism.” See, e.g., Paul Pierson, Dismantling the Welfare State? Reagan, Thatcher and the Politics of Retrenchment (1994); Andrea Louise Campbell, How Politics Make Citizens:  Senior Political Activism and the American Welfare State (2003). For an overview of this literature, see Andrea Louise Campbell, Policy Makes Mass Politics, 15 Ann. Rev. Pol. Sci. 333, 335–​37 (2012). 64 András Sajó, Limiting Government:  An Introduction to Constitutionalism 248 (1999). 65 See Kenneth R. Bowling, “A Tub to the Whale”: The Founding Fathers and Adoption of the Federal Bill of Rights, 8 J. Early Republic 233 (1988); Stuart Leiber, James Madison and Amendments to the Constitution, 1787–​1789: “Parchment Barriers,” 59 J.S. Hist. 441, 441 (1993). 66 Id.

20  How Constitutional Rights Matter how, in Islamist states, rights were included to counteract the effect of Islamic law repugnancy clauses;67 or how bills of rights were included in the constitutions of former British colonies to placate local constituencies that demanded them, even though the British Colonial Office, entrusted with drafting these constitutions, was itself skeptical that they would do much good in practice.68 Rights protections may also serve a more symbolic purpose: to express national identity69 and to articulate the nation’s highest values as an aspirational matter.70 Relatedly, recognizing rights in a country’s founding document may be important for moral reasons. In one prominent articulation of this argument, legal philosopher Alon Harel contends that, even if they do not have instrumental value, including rights in constitutions is morally significant because it recognizes that governments have a duty to respect them.71 It is thus worth emphasizing that when we observe that certain rights have no effect, we are claiming that we cannot find a measurable impact on outcomes—​not that they are unimportant.

E.  The Book’s Organization This book consists of twelve chapters in four parts. Part I introduces the building blocks of our research. Chapter 2 develops our core theoretical claims, most notably that formal organizations with the incentives and the means to resist rights encroachment are the key to enforcing rights. Chapter  3 reviews the existing research on constitutional rights effectiveness. Chapter 4 describes our data on constitutional rights and documents how constitutional rights have proliferated around the world. Finally, ­chapter  5 explains the quantitative and qualitative methods we use to study constitutional rights.

67 Dahwood Ahmed & Tom Ginsburg, Constitutional Islamization and Human Rights:  The Surprising Origin and Spread of Islamic Supremacy Clauses, 54 Va. J. Int’l L. 615 (2014). 68 Charles Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories 272–​74 (2007). 69 See, e.g., Gary Jacobsohn, Constitutional Identity 3 (2010); Geoffrey Brennan & Alan Hamlin, Constitutions as Expressive Documents, in The Oxford Handbook of Political Economy 329, 333–​38 (Barry Weingast & Donald A. Wittman eds., 2006). 70 Beau Breslin, From Words to Worlds:  Exploring Constitutional Functionality 5 (2009) (noting that the primary function of constitutions is to “imagine and then help to realize a shared collective existence”); Vicki C.  Jackson, Constitutional Engagement in a Transnational Era 155 (2009) (describing constitutions as “forms of national self-​expression, providing the framework for the working out within a particular ‘nomos’ of its contests, commitments, and identity”); Seth F. Kreimer, Invidious Comparisons: Some Cautionary Remarks on the Process of Constitutional Borrowing, 1 U. Pa. J. Const. L. 640, 648–​50 (1999). 71 Alon Harel, Why Law Matters 7 (2014).

Introduction  21 Part II presents our evidence on the effectiveness of individual rights. Chapter 6 covers three individual rights of a civil and political nature: the prohibition of torture, freedom of expression, and freedom of movement. For each right, we present data on its effect on rights outcomes. We find that including these three individual rights in constitutions is not associated with improved rights outcomes. We also explore why these rights have limited impact through a case study on the recent restrictions on the freedom of speech in Poland. Chapter 7 examines the effect of two individual rights of a social nature: the right to education and the right to healthcare. We present evidence that suggests that including these rights in constitutions is not associated with increased social spending or improved education or health outcomes. We then use a case study on the right to healthcare in Colombia to explore why social rights enforcement is so difficult. Chapter 8 reports the results of an original survey experiment on the general population in Turkey to understand the role that constitutional arguments play in public support for rights violations. We also discuss how these rights are consistent with a survey we previously conducted on the prohibition of torture in the United States. Part III presents our evidence on the effectiveness of organizational rights. Chapter 9 explores the impact of the freedom of religion. It presents quantitative data which shows that constitutionalizing religious freedom is associated with stronger protections of religious freedom in practice. It also further develops the Russian case study sketched out in this introductory chapter, which reveals that the positive correlation between de jure and de facto religious freedom might result from religious groups using the constitution to protect their rights. Chapter 10 explores the impact of the right to unionize. It presents quantitative evidence which shows that the constitutional protection of the right to unionize is associated with higher levels of respect for workers’ rights in practice. It also presents a case study on the role that unions have played in Tunisia before and after the Arab Spring, which shows that trade unions have successfully used the new Constitution to protect their own rights and interests. Chapter 11 examines the impact of the right to form political parties. It presents quantitative evidence which shows that the constitutional right to form political parties is associated with higher levels of respect for party rights and democracy, as well as a case study on political parties in Myanmar, which shows how the Burmese Constitution of 2008 has aided the formation of new parties and allows them to protect their rights. The chapters in part III are presented in the order of the strength of the organizations they cover. Religious groups are arguably the strongest organizations we study: they have a particularly dedicated member base and strong incentives to protect religious freedom. By comparison, trade unions and political parties have a lower capacity to mobilize for rights protection and have also weakened in

22  How Constitutional Rights Matter recent decades. What is more, the logic of organizing for collective worship is so powerful that religious groups form regardless of whether a constitution protects them. By contrast, we find some evidence that the constitution can play a role in the formation of political parties in particular. Part IV concludes by reviewing our results and discussing some directions for future research. It also highlights several lessons for human rights advocacy that flow from research generally and our case studies specifically.

PART I

T HE ORY, BACKG ROU ND, A N D METHODS

2

The Organizational Basis of Constitutional Rights Protection A.  The Importance of Organizations Political theorists have long recognized that organizations are crucial to a well-​ functioning democracy. In the United States, that observation dates back to at least Alexis de Tocqueville’s mid-​nineteenth-​century study of America. De Tocqueville was intrigued by the country’s “spirit of association” and believed that the large number of voluntary private organizations was central to American democracy’s success.1 He noted that when citizens associate freely, “they end up seeing in association the universal and, so to speak, unique means that men can use to attain the various ends that they propose.”2 Associations can better hold the state accountable and increase the quality of governance, because, as Tocqueville observed, “after disturbing the state for a time, liberty of association strengthens it.”3 Academics have since often repeated the observation that associations benefit democratic society. Robert Dahl considered the freedom of association a key feature of polyarchies—​that is, systems in which multiple institutions and people share power.4 Francis Fukuyama described associations and organizations as crucial to the creation of social capital, the “ability of people to work together for common purposes in groups and organizations.”5 Douglas North, John Joseph Wallis, and Barry Weingast found that associations are the key to what they call “open access orders,” in which access to power is not based on personal relationships, but on impersonal characteristics.6 North and his co-​authors argued that 1 Alexis de Tocqueville, 3 Democracy in America:  Historical-​Critical Edition of De la démocratie en Amérique 914 (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2010) (1840). 2 Id. at 114. 3 Id. at 115. 4 Robert Dahl, Democracy and Its Critics 221 (1989) (describing as a key feature of polyarchy the “right to form relatively independent associations or organizations, including independent political parties and interest groups”); Robert Dahl, On Democracy 84–​85 (2002). 5 Francis Fukuyama, Trust: The Social Virtues and the Creation of Prosperity 356–​57 (1995). 6 Douglass North, John Joseph Wallis, & Barry R.  Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History 1–​2 (2009). How Constitutional Rights Matter. Adam Chilton & Mila Versteeg, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190871451.001.0001

26  THEORY, BACKGROUND, AND METHODS open access orders produce high levels of economic welfare and low levels of violence.7 Other social scientists have noted that citizens’ power to form organizations is crucial to the emergence of a “civil society,” which, in turn, is widely believed to produce trust,8 better government,9 economic growth,10 and more liberty.11 Others view organizations’ role less optimistically.12 James Madison linked organizations to the problem of “faction,” and worried that organizations would push their self-​interest at the expense of the common good.13 Mancur Olson argued that countries with a large number of organizations suffer from “institutional sclerosis,” because these organizations use their political clout to seek rents, which produces increasingly complex regulation, and ultimately, slower economic growth.14 And while Francis Fukuyama regards organizations as key to social capital, he warns against “vetocracy,” where governments struggle to enact welfare-​enhancing policies because so many groups can effectively veto them.15 Yet regardless of whether these scholars view organizations as net negatives or positives to governance and social welfare, they all agree that they matter.

In open access orders, “impersonal categories of individuals” act through organizations that are “open to everyone who meets a set of minimal and impersonal criteria.” Id. at 2–​3. 7 Id. at 3–​6. 8 Robert Putnam, Making Democracy Work 89–​91 (1993) (finding that “members of associations displayed more political sophistication, social trust, political participation, and subjective civic competence” and that civil associations “contribute to the effectiveness and stability of democratic government” because participation in such organizations “inculcates skill of cooperation as well as a sense of share[d]‌responsibility for collective endeavors”). 9 Ernest Gellner, Conditions of Liberty: Civil Society and Its Rivals 5 (1994) (“Civil Society is that set of diverse non-​governmental institutions which is strong enough to counterbalance the state, and, while not preventing the state from fulfilling its role of keeper of the peace and arbitrator between major interests, can nevertheless prevent it from dominating and atomizing the rest of society.”); Guillermo O’Donnell & Philippe D. Schmitter, Transitions from Authoritarian Rule: Tentative Conclusion About Uncertain Democracies 53 (1986). 10 Seymour Martin Lipset, Some Social Requisites of Democracy:  Economic Development and Political Legitimacy, 53 Am. Pol. Sci. Rev. 69, 84 (1959). 11 Emile Durkheim, Professional Ethics and Civic Morals 96 (1992) (insisting that organizations “are essential if the state is not to oppress the individual”). See also Declaration of the Right of Man and the Citizen, 26 August 1789 (France) (“[t]‌he aim of all political association is the preservation of the natural and imprescriptible rights of man.”). 12 These ideas fit within a tradition in economics that emphasizes rent-​seeking behavior by special interest groups. See Gordon Tullock, Government Failure: A Primer on Public Choice 48 (2002); James M. Buchanan, Reform in the Rent-​Seeking Society, in Towards a Theory of the Rent Seeking Society 359 (James M. Buchanan et al. eds., 1980). 13 The Federalist No. 10 (James Madison). 14 Mancur Olson, The Rise and Decline of Nations 44–​45 (1982). 15 Francis Fukuyama, Political Order and Political Decay 488 (2015). Fukuyama portrays the United States as a vetocracy. See Francis Fukuyama, Is American Democracy Strong Enough for Trump?, Politico (Jan. 23, 2017), http://​www.politico.com/​magazine/​story/​2017/​01/​ donald-​trump-​american-​democracy-​214683.

Organizational Basis of Constitutional Rights Protection  27 Understanding how organizations form and fight to protect their interests is also crucial to understanding how constitutional rights can make a difference. Our argument is that strong organizations can improve de facto respect for constitutional rights when they are prepared and able to mobilize for these rights’ enforcement. By contrast, when organizations are weak or nonexistent, governments more easily flout their constitutional obligations. Because some rights are practiced by organizations, these rights are particularly hard to repress because the relevant organizations will seek to protect them. We call these rights organizational rights. The freedom of religion, the right to unionize, and the right to form political parties are examples of organizational rights, since they are practiced by religious groups, trade unions, and political parties, respectively. Though these organizations are not established for the express purpose of protecting those rights, they will be motivated to resist rights violations that hamper their ability to operate freely. And because their ability to organize is directly protected by the constitution, they can use the constitution to call out and challenge obstacles they encounter. This, in turn, boosts confidence in these organizations and encourages investments in them, which make the organizations grow stronger. When organizations are particularly strong, governments are unlikely to undermine these organizations’ rights. Thus, constitutional protection can set off a positive feedback loop that renders organizational rights self-​enforcing. The remainder of this chapter unpacks this argument.

B.  The Problem of Constitutional Rights Enforcement (1)  The Lack of External Enforcement Mechanisms Enforcing constitutional rights against a government is not easy. For certain ordinary types of law—​like codes, statutes, and other rules that largely govern private actors—​the state is the source of law, and it is empowered to enforce it against those private subjects. For constitutional law, however, there is no external actor that can force political actors to comply with the constitution’s rules. In other words, the state is not only the source of constitutional law but also its subject, meaning that the only actor empowered to enforce law against the state is the state itself. 16 Or, as Jack Goldsmith and Daryl Levinson put it, constitutional 16 See Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 171, 1795–​96 (2009) (observing that in public law, the state is both the source of law and its subject, and contrasting the nature of public law with that of private law). This observation that constitutional law lacks an external enforcement mechanism has been made by many others. See, e.g., Gillian K. Hadfield & Barry R. Weingast, Constitutions as Coordinating Devices, in Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North 121, 122 (Sebastian Galiani & Itai Sened eds., 2014); Russell Hardin, Why a Constitution?,

28  THEORY, BACKGROUND, AND METHODS law is both “law of states” and “law for states.”17 Why, then, would a government allow itself to be constrained by constitutional rules? This conundrum is why many “skeptics” have argued that constitutional rights should do little to change government behavior. This argument was forcefully developed by John Austin, who regarded most of constitutional law as positive morality rather than positive law and described constitutions as “mere idle words scribbled on paper or parchment” without “men to enforce them.”18 More recently, Fred Schauer expressed similar skepticism regarding constitutions’ ability to constrain in the absence of coercion; observing that states’ highest officials routinely ignore their constitutions, especially when their actions enjoy popular support.19 To support their argument, skeptics can point to a near endless list of examples of constitutions being ignored. For instance, although North Korea’s constitution provides protection for the freedoms of assembly, expression, and petition, in practice those rights do nothing to constrain Kim Jong-​un’s power.20 And even when governments do seem to behave in accordance with their constitutional rights commitments, the skeptical view is that they only do so because of a “coincidence of interest.”21 This logic explains why, even though Norway only expanded its constitutional rights protections on the document’s two hundredth anniversary in 2014, it upholds its rights commitments. Doing so is costless because it aligns with the values and interests the Norwegian government had well before the amendments’ adoption.22 In contrast to these skeptical views, others believe that constitutions constrain even powerful, self-​interested sovereigns, at least some of the time.23 One well-​ established argument is that constitutions can become self-​enforcing because they solve coordination problems.24 Just as societies need to settle whether cars must drive on the left or right side of the road, they also need to decide how many legislators to elect, who is eligible to run for president, and where to place the capital city. The constitution supplies these basic rules for conducting politics,

in The Social and Political Foundations of Constitutions 51, 53 (Mila Versteeg & Denis Galligan eds., 2013); Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 662 (2011); Martin Shapiro, The European Court of Justice, 32 Isr. L. Rev. 1, 5 (1998). 17 Goldsmith & Levinson, supra note 16, at 1796. 18 John Austin, The Province of Jurisprudence Determined 364 (1832). 19 Fredrick Schauer, The Force of Law 89–​92 (2015); Fredrick Schauer, The Political Risks (If Any) of Breaking the Law, 4 J. Legal Analysis 83 (2012). 20 조선 민주주의 인민 공화국 사회주의 헌법 [Constitution] (Socialist Constitution of the Democratic People’s Republic of Korea), June 2016, arts. 67, 69 (N. Kor.). 21 Goldsmith & Levinson, supra note 16, at 1826. 22 See David S. Law & Mila Versteeg, Sham Constitutions, 101 Cal. L. Rev. 863, 943 (2013). 23 Levinson, supra note 16, at 705–​15. 24 See generally Russell Hardin, Liberalism, Constitutionalism and Democracy (2003).

Organizational Basis of Constitutional Rights Protection  29 and because all political actors benefit from having settled rules, they accept those rules. The coordination logic is particularly powerful when there are no distributional consequences from a rule, that is, when parties are indifferent as to which constitutional rule they settle on.25 But this logic also applies to situations with distributional consequences. Even if some groups would have preferred different constitutional rules, they may still be better off under the constitution because, without it, they would face costly chaos and contestation.26 Moreover, constitutions are a bundle of rules: different actors may get their preferred rules in some areas but not others. The existence of a bundle of rules is beneficial to most political actors; it means that they do not continuously face battles over the basic rules for conducting politics. Overall, then, the benefits of having a set of rules that allows the state to conduct its political affairs without chaos outweigh the cost of being governed by what the actor considers a suboptimal rule. The logic of coordination explains not only why groups agree to constitutional rules, but also why those constitutional rules may constrain government behav­ ior after their adoption.27 Most groups acquiesce even to those rules they do not favor, because they believe that they will be better off with the constitution than without it. And if an actor tries to deviate from a rule—​that is, to re-​coordinate—​ it may prompt resistance from others and jeopardize all of the constitution’s coordination benefits.28 For example, when Russian President Boris Yeltsin dissolved the Russian parliament in 1993 without having the constitutional authority to do so, the parliament also stopped playing by the rules: it instated a new president and impeached Yeltsin. Without constitutional rules to resolve the dispute, it had to be resolved through force; Yeltsin ultimately used the military to lay siege on the parliament. While Yeltsin won the battle, the victory came at a high price; ten days of street fighting and a death toll of around two thousand. It is the prospect of these kinds of constitutional crises that deter violations. When attempts to deviate from the constitution are too costly, typically no one will deviate, and the constitution will become self-​enforcing. The coordination logic is better at explaining compliance with the structural provisions of constitutions—​like which branch of government appropriates funds—​than respect for rights.29 Compared to structural provisions, which 25 Id. at 93. 26 Id. This is what game theorists call a “battle-​of-​the sexes game.” 27 Id. at 103 (distinguishing between “coordinating on the constitution” and “coordinating under the constitution”). 28 Id. at 113–​14 (noting that the ultimate costs of not abiding by the constitution is “the internal cost of collective action for re-​coordination”); Richard H. McAdams, The Expressive Powers of Law 72 (2015) (“The parties will insist on getting at least the power the focal point declares them to have . . . The other political players expect as much and give in to what seems inevitable given the constitutional focal point.”). 29 This argument was developed by Levinson, supra note 16, at 717–​24. We draw on Levinson’s account here.

30  THEORY, BACKGROUND, AND METHODS are often articulated as clear rules, rights provisions are often rather ambiguous, which makes it difficult to determine on what exactly the parties coordinated.30 Moreover, structural provisions are typically backed by political institutions that have the incentives and means to push back against actors that deviate from the agreed-​upon rules.31 For example, when a federal government encroaches upon state powers, states will do what they can to defend their rights under the constitution.32 Rights, by contrast, merely represent a substantive norm; they do not generally empower institutions with the incentives to push back.33 At best, they empower the citizenry at large. However, citizens are not always well organized, and therefore may lack the political clout to resist rights encroachment. (The notable exception, we will argue, are those rights that are practiced by and within organizations, or “organizational rights,” which are more like structural provisions.34)

(2)  Coordination Problems and Collective Action Problems A central question here is whether citizens can use the constitution to resist rights encroachment by the government, just like branches of government can use the constitution to resist other branches.35 We believe that citizens potentially have the power to make constitutional rights violations costly. If rights violations set off widespread protests, produce civil disobedience, and cause people to turn against the government in the next election, then leaders will think twice before violating the constitution. But citizens face two obstacles when attempting to punish their government: coordination problems and collective action problems. First, citizens face a coordination problem because, save for extreme circumstances, they are unlikely to agree about when punishing the government is 30 Id. at 723. Cf. Jack L. Goldsmith & Eric A. Posner, The Limits of International Law 112–​ 15 (2005) (explaining how coordination does not provide a plausible explanation for why human rights treaties may have an effect). 31 Levinson, supra note 16, at 723–​24. 32 This basic idea traces back to James Madison, who believed that a constitution should be designed so that “ambition  .  .  .  counteract[s]‌ambition” thus becoming self-​enforcing. See The Federalist No. 51 (James Madison). See also Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954); Rui J.P. de Figueiredo, Jr. & Barry R. Weingast, Self-​Enforcing Federalism, 21 J.L. Econ. & Org. 103 (2005). 33 Levinson, supra note 16, at 717. 34 Cf. Ozan Varol, Structural Rights, 105 Geo. J. L. 1001 (2017). 35 Hadfield & Weingast, supra note 16, at 123 (positing that “decentralized enforcement” of constitutions occurs when “members of the community simultaneously but independently make a decision about whether to participate in the collective punishment of an action of another agent”); Barry Weingast & Sonia Mittal, Self-​Enforcing Constitutions: With an Application to Democratic Stability in America’s First Century, 29 J.L. Econ. & Org. 278, 280, 283 (2013); Barry Weingast, Political Foundations of Democracy and the Rule of Law, 91 Am. Pol. Sci. Rev. 245, 261 (1997).

Organizational Basis of Constitutional Rights Protection  31 appropriate. Citizens have different ideas about when a government transgresses its power. For example, some citizens believe that free speech should not extend to hate speech; others believe it should. In the absence of rights provisions, citizens who claim the government transgressed its powers have to resort to arguments rooted in morality or fairness. Doing so is difficult, as different citizens likely have different, or even opposing, notions of what is fair and just. When a constitutional rule exists, it supplies citizens with the ability to make legal arguments. It can also provide guidance on specific scenarios. When the constitution states that “everyone shall have the freedom of expression, except when harming the dignity of others,” it clarifies that legislation against hate speech is not a transgression of powers. It is for this reason that some theorists have described rights as “focal points” that allow citizens to coordinate their sanctioning of government behavior.36 In practice, however, constitutional rights by themselves are rarely enough to overcome these kinds of coordination problems. Rights provisions are often too ambiguous to serve as a focal point. To return to our free speech example, most constitutions do not provide a clear rule on whether hate speech is protected by free speech provisions. Moreover, when a constitution protects a wide range of rights, as most modern constitutions do, the inevitable clashes between different rights can create further ambiguity over whether a given right has been violated. For instance, curtailing one right may be reasonably justified in the name of competing rights values.37 Governments can take advantage of this tension: they can claim that certain restrictions do not amount to a constitutional violation because they serve to protect some other right, thereby providing a powerful counter-​narrative to those who cry foul.38 More generally, many governments have perfected the art of undermining rights without committing blatant constitutional violations. For instance, instead of passing viewpoint restrictions on speech, many governments have found it easier to buy airtime and co-​opt the media. Such actions undermine free speech, but it is not clear they violate the constitution. For citizens to coordinate in such situations, more than just a constitutional right is needed: dedicated groups are necessary to convince others that certain actions are impermissible. 36 Weingast, supra note 35, at 246; McAdams, supra note 28. 37 The argument that more rights are not always better was developed in Eric A. Posner, The Twilight of Human Rights Law 89 (2014). There is also a large comparative constitutional law literature on rights balancing. See, e.g., Robert Alexy, Constitutional Rights, Balancing, and Rationality, 16 Ratio Juris 131 (2003); Aharon Barak, Proportionality (2), in The Oxford Handbook of Comparative Constitutional Law 738 (Michel Rosenfeld & Andras Sajo eds., 2012); Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 2094 (2014). 38 In the absence of a focal point, coordination might happen when it is “common knowledge” which violations are to be considered transgressions of government power. Yet it is unclear whether such common knowledge exists, except for the most extreme violations, especially in diverse societies.

32  THEORY, BACKGROUND, AND METHODS Second, even when citizens solve this coordination problem, they still face a collective action problem. Many ways of punishing rights-​violating governments, like protesting or engaging in civil disobedience, are only effective when a significant number of citizens act together.39 While we can marvel at the unknown “Tank Man” who set off the 1989 Tiananmen Square protest or the Tunisian street vendor, Mohamed Bouazizi, who set himself on fire and triggered the Arab Spring, most of the time, a single protester does not accomplish much. Governments are not rattled by small groups of protesters; it is large crowds that make them wary.40 For rights enforcement to happen, many citizens will have to act collectively. Yet it is not obvious that most citizens would want to participate in enforcement actions. Rights enforcement is what public choice theorists call “a collective good”: a good where it is infeasible to exclude those who did not contribute to its production.41 Any citizen deciding whether to participate in rights enforcement will eventually realize that if her fellow citizens incur the costs of doing so, she will enjoy higher levels of rights protection regardless of her own involvement. When her fellow citizens stay home, she should also stay home, as a small crowd is unlikely to impress and may just land her in prison. Maybe she can be convinced to participate if she is confident that many others will do the same,42 but it is difficult to get assurances from large and disconnected groups of citizens.43 Thus, a key dilemma for rights enforcement 39 Elinor Ostrom, Collective Action Theory, in The Oxford Handbook of Comparative Politics 187, 187 (Carles Boix & Susan C. Stokes eds., 2009). 40 Erica Chenoweth & Maria J. Stephan, Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict 39–​41 (2011) (finding that a turnout of 3.5 percent of the population is particularly powerful). 41 Russell Hardin, Collective Action 19–​20 (1982). Of course, many societies marginalize groups and exclude them from the enjoyment of rights; the point here is that the benefits of rights are not usually limited to those who protest the government. 42 In this sense, rights enforcement is an “assurance game.” See William N. Eskridge, Jr., Channeling Identity-​Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419, 451 (2001). 43 In some circumstances, people may actually be less likely to attend a protest if they believe a large number of people are going. This could be, for instance, because they think their attendance is not necessary, or because too many people attending a protest may make some people think that showing up is no longer cool. Testing this hypothesis, a group of economists conducted a field experiment during the ongoing antiauthoritarian protests in Hong Kong that are best epitomized by the so-​called “Umbrella Movement.” Cantoni et al. surveyed students at Hong Kong University of Science and Technology to solicit information about their planned participation in a protest and their beliefs about others’ planned participation. One day before the planned protests on July 1, 2016, Cantoni et al. randomly emailed some students truthful information about the number of other students that planned to participate. These emails made students who had overestimated participation more likely to attend and students who had underestimated participation less likely to attend. The results thus suggest that individuals’ decision to participate may be a complicated strategic decision. Davide Cantoni et al., Protests as Strategic Games: Experimental Evidence from Hong Kong’s Anti-​ Authoritarian Movement, 134 Q.J. Econ. 1021 (2019). It is worth noting that we have heard some concerns raised about the ethics of conducting an experiment that may have put the participants at risk of retaliation from an authoritarian regime. This is exactly what we tried to avoid by using stated preferences measures of willingness to mobilize instead of behavior measures when conducting our own experiment in Turkey, reported in c­ hapter 8.

Organizational Basis of Constitutional Rights Protection  33 is, to borrow a phrase from Hannah Arendt, to get people to “act in concert in the public sphere.”44 Again, constitutional rights alone are usually not enough to overcome these problems. Rights alone do not assure protesters that they will be joined by others and provide no guidance on how citizens should go about punishing the government. This is not to say that they can never help: social movement theorists have found that there is a “cognitive dimension” to collective action, and that the strategic framing of government actions as rights violations can play into this cognitive dimension.45 Some studies have shown that strategic rights framing can build solidarity among different groups and that participating in protests can give them a feeling of belonging and empowerment.46 Others have found that framing grievances as rights violations changes how citizens perceive government actions: instead of attributing deficiencies to their own behavior, people now blame the system.47 Similar insights emerge from the law and society literature, which has long held that “a rights consciousness” is crucial to rights mobilization and that rights protections help create such a consciousness.48 That is, constitutional rights enable strategic framing, which in turn, can create a rights consciousness that motivates citizens to punish rights violations. Yet, rights 44 Hannah Arendt, Crises of the Republic: Lying in Politics; Civil Disobedience; On Violence; Thoughts on Politics and Revolution 143 (1972). 45 Within the social movement literature, the importance of framing traces back to the work of David Snow, who defines framing as “the conscious and strategic efforts by groups of people to fashion shared understandings of the world and of themselves that legitimate and motivate collective action.” See Doug McAdam, John D. McCarthy, & Mayer N. Zald, Introduction: Opportunities, Mobilizing Structures and Framing Processes—​Toward a Synthetic, Comparative Perspective on Social Movements, in Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures and Cultural Framings 1, 5–​6 (Doug McAdam et al. eds., 1996) (citing Snow). The social movement theorists that stress the importance of framing build on an older tradition that emphasizes the importance of collective grievances in mobilization. 46 Alyson Brysk, Speaking Rights to Power: Constructing Political Will 15 (2013). See also Margaret Keck & Kathryn Sikkink, Activists Beyond Borders (1998); Hardin, supra note 41, at 14, 108–​09. In a recent book, Kiyoteru Tsutsui takes these ideas a step further and argues that human rights can even help to initiate movements that did not previously exist. See Kiyoteru Tsutsui, Rights Make Might: Global Human Rights and Minority Social Movements in Japan 17–​18 (2018) (describing how “human rights can help ignite political mobilization by previously inactive groups”). 47 Social movement theorists describe this as “fundamental attribution error.” See McAdam et al., supra note 45, at 9 (describing “fundamental attribution error” as the “tendency of people to explain their situation as a function of individual deficiencies rather than features of the system” and noting that this is more likely to “occur under conditions of social isolation rather than organization”). 48 See generally Michael McCann, Litigation and Legal Mobilization, in The Oxford Handbook of Law and Politics 523, 529–​30 (Keith E.  Whittington et  al. eds., 2008). S.  A. Scheingold, The Politics of Rights:  Lawyers, Public Policy and Social Change 131 (1974). Studies have pointed at the importance of rights consciousness in the pay equity movement, in the mental health patient movement, and in the women’s rights movement, to name just a few. See Michael W.  McCann, Rights at Work 5 (1994); Sally Engle Merry, Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence, 25 Hum. Rts. Q. 343, 345 (2003); Neal Milner, The Right to Refuse Treatment: Four Case Studies in Legal Mobilization, 21 Law & Soc. Rev. 447 (1987).

34  THEORY, BACKGROUND, AND METHODS framing is a strategic activity: rights alone are unlikely to induce such feelings. What is needed, therefore, are organizations that can frame violations in such a manner that they motivate citizens to take action.

(3)  Why Organizations Matter to Rights Enforcement We believe that organizations are the key to solving both the coordination and collective action problems inherent in rights enforcement. First, organizations can help to solve coordination problems by creating focal points. Organizations can make constitutional arguments to frame certain government actions as transgressions of power.49 Organizations can also attempt to resolve disagreements over whether government actions constitute a violation by presenting the question to the country’s constitutional court. The court can clarify, for instance, whether the constitution’s free speech provision protects hate speech or not. Notably, the presence of courts alone is unlikely to be enough to overcome coordination problems: this type of strategic litigation itself requires organizational capacity. As Charles Epp observed in his famous study on rights revolutions, for rights to be judicially enforced, there needs to be a support structure for legal mobilization in the form of well-​funded and committed organizations.50 Moreover, in many cases, it is not clear that the courts will indeed supply the ammunition to punish governments. Even independent courts frequently avoid high-​profile political clashes that are counter-​majoritarian in nature,51 often by employing various avoidance canons.52 When judicial recourse is not available, organizations can pursue other strategies to overcome coordination problems, such as persuading others that certain government actions are unconstitutional.53 Thus,

49 David Snow et al., Frame Alignment Processes, Micromobilization, and Movement Participation, 51 Am. Soc. Rev. 464 (1986). McAdam et al., supra note 45, at 9 (noting that framing processes are important but “both more likely and of far greater consequence under conditions of strong rather than weak organization”); id. at 11 (noting that, under conditions of formal organization, framing processes are likely “shaped by conscious, strategic decisions” and “the subject of intense contestation between collective actors representing the movement” and as a result, more likely to be successful). 50 Charles R. Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective 5 (1998). 51 See, e.g., Robert A. Dahl, Decision-​Making in a Democracy: The Supreme Court as a National Policy-​Maker, 6 J. Pub L. 279, 285 (1957). 52 Erin Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016); Yonatan Lupu, Pierre Verdier, & Mila Versteeg, The Strength of Weak Review: National Courts, Interpretive Canons, and Human Rights Treaties, 63 Int’l Stud. Q. 507 (2019). 53 See Larry D.  Kramer, Popular Constitutionalism:  The People Themselves and Judicial Review (2004) (observing, in the context of the U.S., that “social movements  .  .  .  may equally launch a campaign based on a novel reading of the Constitution, the test of validity being whether they can persuade enough others to embrace or adopt their position”).

Organizational Basis of Constitutional Rights Protection  35 regardless of whether the courts are called upon, we believe that organizations are the key to solving coordination problems. Second, organizations can help overcome collective action problems by motivating citizens to mobilize and assuring them that they will not be alone. When organizations strategically frame government actions as constitutional rights violations, this not only helps overcome coordination problems but might also motivate citizens to participate in enforcement actions.54 But even motivated citizens will only turn out if they can be assured that they will be joined by others.55 A large crowd ensures that enforcement actions will make an impact and further allows protesters to conceal their identity and escape retribution by the government.56 Organizations have the capacity to provide such assurance, especially when they have a loyal member base. They can also coordinate basic logistics like getting permits and ensuring that protesters know where to show up. Organizations further possess expertise in political and legal advocacy, which allows them to strategically plot the best course of action. Of course, massive collective action at times happens without formal organizations, especially in the age of social media.57 Where thousands of people post on Facebook that they are attending an event, this offers assurance to potential protesters that they will not be alone. Yet there are limits to the effectiveness of individuals’ ability to organize through social media. Through a series of case studies, sociologist Zeynep Tufekci has documented how movements that emerge through social media have a number of disadvantages compared to formal organizations: they usually do not have formal leaders that can decide on the next steps, they lack a strategic long-​term vision, and they do not invest in establishing connections with the government.58 As a result, members of such movements often disagree on the movement’s goals. Because of these inherent weaknesses, social media movements may fail to make a lasting impact.

54 McAdam et al., supra note 45, at 9–​11. 55 Or in cases where members seem compliant because it appears that many people will show up for a protest, the organization can compel individuals to attend by arguing that other members are unlikely to attend. Cf. Cantoni et al., supra note 43. 56 Dennis Chong, Collective Action and the Civil Rights Movement 103–​40 (1991); Michael Suk-​ Young Chwe, Rational Ritual:  Culture, Coordination and Common Knowledge 10 (2001) (noting that “each person is more willing to show up at a demonstration if many others do, perhaps because success is more likely and getting arrested is less likely”); Weingast, supra note 35, at 248 (observing that how “one citizen group reacts to a transgression depends on how it anticipates the other citizen group will react”); Chenoweth & Stephan, supra note 40, at 35 (“Scholars have found that individuals are more likely to engage in protest activity when they expect large numbers of people to participate.”). 57 Zeynep Tufekci, Twitter and Tear Gas:  The Power and Fragility of Networked Protest 50 (2017) (observing how social media allows protesters to “organize at a large scale on the fly, while relying on a small number of people to carry out work that previously required much infrastructure and many people.”). 58 Id.

36  THEORY, BACKGROUND, AND METHODS The Gezi Park protests in Turkey illustrate this logic.59 The protests emerged in May 2013 when the government planned to replace one of Istanbul’s remaining green spaces with a shopping mall. When a sit-​in in Gezi Park was forcefully broken up, unconnected activists used Facebook, Twitter, and WhatsApp to call for people to protest. In response, an estimated 3.5 million people participated in some five thousand protests across the country.60 All this happened without formal organizations—​it was a handful of social media activists that staged the protests. But the movement lacked the expertise and leadership of formal organizations. The movement also lacked a clear vision of what the protests were about: the ancient trees in Gezi Park or the creeping authoritarianism of President Erdogan.61 President Erdogan exploited these weaknesses. In June 2013, the government announced it would preserve Gezi Park’s trees. With the underlying cause of the protests removed, the government exploited the confusion among the protesters on how to respond, bringing in “tear gas and riot police” to end the occupation of Gezi Park.62 Had there been official leaders and a clear goal for the movement, the Gezi Park protests might have ended differently.

(4)  Organizations Do Not Always Exist While organizations are the key to overcoming the coordination problems and collective actions problems associated with fighting the state, they do not magically appear. A long-​debated question in social theory is why individuals would incur costs of organizing when the benefits fall on all citizens and not just the organizers. Most citizens prefer for others to incur these costs, as they will reap the benefits regardless. This presents a puzzle: it is not clear why any given individual would incur the costs of establishing organizations, but we know that organizations that protect rights do exist. One solution to this puzzle is Mancur Olson’s “by-​product” theory of collective action. The theory suggests that organizing for the provision of collective goods only happens as a “by-​product” of organizing for individual gains.63 Organizations form when they can offer “selective incentives” to their members; that is, benefits available to members only and from which nonmembers are 59 Id. at 51. 60 Christopher de Bellaigue, Turkey: “Surreal, Menacing . . . Pompous,” N.Y. Rev. Books (Dec. 19, 2013), http://​www.nybooks.com/​articles/​2013/​12/​19/​turkey-​surreal-​menacing-​pompous/​. 61 Polls suggest that 60 percent of the protesters in Gezi Park protested President Erdogan and his creeping authoritarianism, not destruction of the trees. Peter Beaumont, Erdoğan Issues Stark “Final Warning” to Turkey’s Gezi Park Protesters, Guardian (June 14, 2013), https://​www.theguardian.com/​ world/​2013/​jun/​13/​turkey-​gezi-​park-​protesters. 62 Tufekci, supra note 57, at 74. 63 Mancur Olson, The Logic of Collective Action 2 (1965). Tufekci, supra note 57, at 51.

Organizational Basis of Constitutional Rights Protection  37 excluded.64 Trade unions are an example of an organization that provide selective incentives to members. Unions offer members benefits like health insurance, procedural protections against dismissal, higher wages, or legal representation.65 Likewise, people join political parties to launch their own political career or to be involved with those who share their political ideals; they join religious organizations to be part of a community of fellow believers and to practice their religion collectively. Yet once organizations are established, they may dedicate a portion of their resources to the provision of collective goods that benefit members and nonmembers alike. Rights protection offers an example: when the rights of an organization are threatened, it has both the incentives and means to fight back, even when such actions also benefit nonmembers. While the by-​product theory explains why religious groups, trade unions, and political parties will use their resources to protect constitutional rights, it cannot easily explain the existence of organizations specifically dedicated to constitutional rights protection. This problem is particularly vexing for individual constitutional rights. When rights are practiced individually, and not by organizations, they lack a natural organizational vehicle. For example, people do not need a free speech organization to exercise freedom of expression, and they do not need a freedom of movement organization to exercise free movement. As a result, it is not clear what prospective members stand to gain from joining an organization that protects free speech or movement, especially if these rights are widely upheld. Put differently, dedicated human rights organizations are unable to offer their members selective incentives. There is no equivalent to free health insurance or religious worship that that will entice people to join dedicated rights organizations. Although we know they sometimes do exist, it is thus far from obvious why such organizations are established. There are a number of explanations for the existence of organizations that provide collective goods only. One is that some people have “extra-​rational” or “moral” motivations.66 People like Florence Nightingale, Mother Teresa, Gandhi, and Nelson Mandela incurred great personal expense to fight for others. But this does not account for the behavior of most people; most of us are not like Mother Teresa.

64 Olson, supra note 63, at 140; Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stagflation and Social Rigidities 21–​24 (1984). 65 For example, when Israel passed a National Health Insurance Law in 1995, Israel’s main organ­ ization of trade unions, Histadrut, lost its monopoly on providing free health insurance and saw a major drop in its membership. See Yinon Cohen et al., Unpacking Union Density: Membership and Coverage in the Transformation of Israel IR System, 42 Indus. Rel. 692, 694 (2003). We note, however, that unions cannot always exclude nonmembers from their benefits. For instance, if unions negotiate better contract terms for a workforce that is only partially unionized, other employees may benefit. 66 Hardin, supra note 41.

38  THEORY, BACKGROUND, AND METHODS An important, and less altruistic, corollary to this extrarational explanation is that certain people—​sometimes referred to as “political entrepreneurs”—​derive important career benefits from establishing organizations, even when an organization is primarily dedicated to the provision of collective goods.67 When a political entrepreneur can reap career benefits from establishing a dedicated rights organization, she may invest and establish one. Notably, if organizations depend on the incentives of political entrepreneurs, certain conditions likely have to be met for these organizations to be viable. A political entrepreneur is unlikely to establish a rights organization when rights are generally upheld. For example, if free speech is well protected, there will be little demand for a free speech organization. What is needed is a real or perceived sense that rights are at risk and require protection. To illustrate, the American Civil Liberties Union (ACLU) was established in response to the “Palmer Raids” of 1919 and 1920, when Attorney General Michael Palmer began rounding up and deporting those who allegedly supported the communist revolution in Russia.68 Perceived risks can also strengthen the organization. In another ACLU example, after U.S. President Donald J. Trump announced his travel ban, the ACLU benefited from the widespread perception that rights were under attack and received record-​high donations.69 But this surge of support may not last. When President Trump is out of office, donors may refocus on issues that seem more pressing. Political entrepreneurs are also unlikely to invest in all rights equally. When rights violations concern small groups of citizens only, demand for organizations that protect these rights will be low. Take the prohibition of torture. In most countries, torture tends to enjoy fairly widespread popular support, chiefly because it usually affects only a small number of people: those suspected of terrorism or other crimes. One poll found that 47 percent of Americans believe that torture of suspected terrorists was “always” or at least “sometimes” justified, while only 25 percent held that torture was never justified.70 Similar numbers 67 Id. at 34 (observing that the “original organization of latent groups is accomplished by political entrepreneurs acting in their own career interests”); see also Joe Foweraker & Todd Landman, Citizenship Rights and Social Movements: A Comparative and Statistical Analysis 35 (2000); John D. McCarthy & Mayer N. Zald, The Trend of Social Movements in America 20 (1973); Charles Tilly, From Mobilization to Revolution 2–​28 (1978); Craig J. Jenkins, Resource Mobilization Theory and the Study of Social Movements, 9 Ann. Rev. Soc. 527, 536 (1983) (describing career opportunities as a form of selective incentives). 68 ACLU History: Some Highlights, Why We Do What We Do, How We Do It, Am. Civil Liberties Union, https://​www.aclu.org/​about/​aclu-​history (last visited Jan. 21, 2019). See also Laura Weinrib, Taming of Free Speech: America’s Civil Liberties Compromise (2016). 69 Liam Stack, Donations to A.C.L.U.  and Other Organizations Surge After Trump’s Order, N.Y. Times (Jan. 30, 2017), https://​www.nytimes.com/​2017/​01/​30/​us/​aclu-​fund-​raising-​trump-​travel-​ ban.html. 70 Emily Swanson, Torture Poll: Most Americans Say Torture Is Justifiable at Times, Huffington Post (Dec. 14, 2012), http://​www.huffingtonpost.com/​2012/​12/​14/​torture-​poll-​2012_​n_​2301492. html; Darren Davis & Brian Silver, Civil Liberties vs. Security: Public Opinion in the Context of the

Organizational Basis of Constitutional Rights Protection  39 emerge from global surveys.71 Such popular support for torture may deter political entrepreneurs from investing in organizations dedicated to combating torture. By contrast, when rights violations concern most citizens, it will be easier to gather support for a human rights organization.72 Importantly, even when dedicated rights organizations are able to get off the ground, they are likely to be weaker than organized religion, trade unions, and political parties. The main reason is that they depend on members and donors specifically dedicated to rights protection. As a result, they are unlikely to turn into mass membership-​based organizations (like religious groups or trade unions), which can build a large and loyal membership base by offering selective incentives unrelated to rights protection. Another reason why these organizations are weaker is that their strength depends on actual rights violations, which can hurt their ability to respond to new violations effectively. Our Polish case study (presented in c­ hapter 6) illustrates this: many of the organizations that are defending the Constitution were formed in response to the first wave of attacks by the Law and Justice Party, which started weeks after it came to power. By the time these organizations were up and running, they had missed the opportunity to effectively respond to the crucial first wave of attacks. This might not be a coincidence. Attacks on individual liberties often occur immediately after illiberal leaders gain power; they know that it is best to strike before an organized resistance forms. Organized religion, trade unions, and political parties do not face this same disadvantage. When faced with a new wave of violations, they find themselves in a strong position to take action to prevent such rights encroachment.

Terrorists Attacks on America, 44 Am. J. Pol. Sci. 28 (2004). But see Paul Gronke et al., US Public Opinion on Torture, 2001–​2009, 43 Ps: Pol. Sci. & Pol. 437 (2010). 71 One study finds that a majority of people in India, Thailand, South Korea, Turkey, Iran, and Russia believe that torture should be allowed in some circumstances. Steven Kull et al., World Public Opinion on Torture (2008), http://​worldpublicopinion.net/​wp-​content/​uploads/​2016/​06/​ WPO_​Torture_​Jun08_​packet.pdf. A similar study conducted by Amnesty International finds that a majority of people in China, India, Kenya, Nigeria, Pakistan, and Indonesia support torture under some circumstances. See Attitudes to Torture: Stop Torture Global Survey, Amnesty International (2014), https://​www.amnesty.org/​en/​documents/​ACT40/​005/​2014/​en. 72 We acknowledge that most human rights organizations do not focus on a single right, but on a range of rights. Even so, they often focus on issues where they find the most support. For example, when the ACLU fought for the free speech of armed Nazis, it received intense backlash from members and decided to rethink its approach. See Dara Lind, Why the ACLU Is Adjusting Its Approach to “Free Speech” after Charlottesville, Vox (Aug. 20, 2017), https://​www.vox.com/​2017/​8/​20/​16167870/​ aclu-​hate-​speech-​nazis-​charlottesville.

40  THEORY, BACKGROUND, AND METHODS

C.  The Importance of Constitutional Rights to Organizations (1)  Constitutional Rights Help Organizations Mobilize We have argued that organizations help citizens act together and punish a rights-abusing government. What we have not yet fully explained is how constitutional rights can help organizations. We believe that both organizations and constitutional protections are crucial ingredients for constitutional rights enforcement. This is true regardless of whether these are dedicated human rights organizations or broad membership-​ based organizations that enforce constitutional rights merely as a by-​product of their organizing for other goals (like religious groups, trade unions, and political parties). Both kinds of organizations are aided by the constitution in at least two distinct ways: (1) the constitution can help to enforce rights through the political process, and (2) the constitution enables litigation.73 Perhaps the most powerful way in which the constitution can be deployed to enforce rights is through the political process. Notably, organizations can rely on the constitution when lobbying against proposed initiatives that hurt rights. Our case studies illustrate how using the constitution to lobby against rights-​ restricting proposals can be a highly effective strategy. Signaling strong opposition at this stage provides the government with information that there will be political consequences for its actions, and allows it to change track without losing face. Of course, lobbying is most effective when an organization has established relationships with the government. These relationships are more likely to exist for organizations that interact with the government over a range of issues, as is the case for religious groups, trade unions, and political parties, than for organizations that merely exist to criticize it. In many countries, religious groups and trade unions possess carefully cultivated political connections. In some cases, these connections have even been institutionalized, such as in tripartite systems of labor relations in countries with an official state religion. These organizations, then, are particularly well positioned to halt harmful proposals early. There are also more disruptive ways to use the constitution to influence the political process. Organizations can get their members out in the street to protest 73 These can be seen as two forms of “legal mobilization.” See Lisa Vanhala, Legal Mobilization, Oxford Bibliographies, http://​www.oxfordbibliographies.com/​view/​document/​obo-​9780199756223/​obo-​ 9780199756223-​0031.xml (last modified Feb. 22, 2018) (noting that “in its narrowest applications, the term refers to high-​profile litigation efforts for (or, arguably, against) social change” but that a more broader definition includes “any type of process by which individual or collective actors invoke legal norms, discourse, or symbols to influence policy or behavior”). Most of the literature uses the broader definition. See, e.g., Frances K. Zemans, Legal Mobilization: The Neglected Role of Law in the Political System, 77 Am. Pol. Sci. Rev. 700 (1983) (describing “legal mobilization” as the idea that “the law is mobilized . . . when a desire or want is translated into a demand as an assertion of rights”).

Organizational Basis of Constitutional Rights Protection  41 constitutional rights violations. When a country has free and fair elections, they can attempt to work with the political opposition to turn voters against rights violations. They can also coordinate other forms of “civil resistance,” that is, use political methods that “deliberately or necessarily circumvent normal political channels and employ non-​institutional (often illegal) forms of action.”74 In addition to enforcing rights through the political process, organizations can litigate constitutional violations. We believe that litigation is often less powerful than the aforementioned political strategies. Litigation takes time, and by the time the highest court rules (positively) on the matter, the contested measures will have been in effect for some time.75 What is more, our case studies reveal that litigation tends to be pursued when political strategies fail or are unavailable. In Russia, we observed that small and unpopular religious groups with few established political connections—​like the Scientologists and the Jehovah’s Witnesses—​were the ones that resorted to litigation, while the powerful Russian Orthodox Church used the Constitution to pressure the government politically. While small and unpopular groups occasionally prevail in court, it is important to note that when rights violations enjoy broad popular support, courts are often unwilling or unable to stand up against the majority.76

(2)  Organizational Rights Help Organizations Function All organizations can use the constitution to resist rights encroachment, but organizations that are directly protected by the constitution as organizations enjoy additional constitutional benefits. This is the case for religious groups operating in countries where the constitution protects religious freedom, trade unions in countries that have constitutionalized the right to unionize, and political parties constitutionally protected by the right to form political parties. When organizations are directly protected by the constitution, it is more difficult for a government to deny them access to legal personality. While the logic of collective action suggests that some groups of citizens will organize regardless of whether they enjoy constitutional protection, this does not automatically mean that they will be able to incorporate and access legal personality. Lack of corporate rights can be a major obstacle for groups who seek to defend their rights and 74 Chenoweth & Stephan, supra note 40, at 12. 75 This is not the case for countries with abstract review, which can usually be initiated before a law passes. On the other hand, usually only political actors can initiate such review. See, e.g., Alec Stone-​ Sweet, Constitutional Courts and Parliamentary Democracy, 26 West Eur. Pol. 77 (2007). 76 See, e.g., Dahl, supra note 51, at 285; Tom S. Clark, The Limits of Judicial Independence (2011); Lee Epstein, Jack Knight, & Olga Shvetsova, The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government, 35 Law & Soc’y Rev. 117, 135–​37 (2001).

42  THEORY, BACKGROUND, AND METHODS interests.77 A group that lacks legal personality has to rely on individual members to engage in basic transactions such as opening a bank account, signing a lease, and being able to sue or be sued, which can expose members to excessive individual liability. Such groups also lack perpetual succession, meaning that it is difficult for leadership to turn over. They further cannot conceal members’ identities to shield them from government retaliation. Because of these obstacles, groups may remain small and weak, and few political entrepreneurs will invest in them. Countries differ in how they facilitate access to legal personality for religious groups, trade unions, and political parties. Many have special laws for the recognition of religious groups, trade unions, and political parties; others use the same legal regime for all types of organizations. Regardless, in virtually all countries, accessing legal personality requires some form of registration.78 Governments can abuse these registration requirements to deny corporate rights to organizations they deem undesirable.79 Governments can also make registration excessively burdensome, arbitrarily deny applications, or impose restrictions on the types of objectives that an organization can pursue and how it obtains funding. Organizations that enjoy constitutional protection as organizations can challenge these kinds of abuses as violations of their constitutional rights. For instance, in Myanmar, the government was reluctant to register one of the new parties it opposed. But because the party had met all the requirements for registration, it was impossible to simply deny the application. The government instead opted to leave the application pending. However, with the party protesting, this strategy became hard to maintain and the party was ultimately registered (we describe these events in c­ hapter 11). In other cases, groups have successfully challenged overly restrictive provisions in the relevant registration laws on constitutional grounds. In later chapters, we give a number of examples of such challenges: religious groups challenging the religious registration law in Bulgaria (­chapter 9); trade unions challenging a trade union registration law in Zambia (­chapter  10); and political parties challenging a party registration law in the Maldives (­chapter 11).

77 Richard Fries, The Legal Environment of Civil Society, in Global Civil Society 2003, at 221, 224 (Mary Kaldor et al. eds., 2003). 78 Id. at 228 (“The registration requirement provides the authorities with the opportunity to control civil society improperly”). 79 See Richard Brooks & Timothy W.  Guinnane, The Right to Associate and the Rights of Associations: Civil-​Society Organizations in Prussia, 1794–​1908, in Organizations, Civil Society, and the Roots of Development 291 (Naomi R. Lamoreaux & John Joseph Wallis eds., 2017); Ruth H. Bloch & Naomi R. Lamoreaux, Voluntary Associations, Corporate Rights, and the State: Legal Constraints on the Development of American Civil Society, 1750–​1900, in Organizations, Civil Society, and the Roots of Development, supra, at 231.

Organizational Basis of Constitutional Rights Protection  43 In addition to facilitating access to legal personality, organizational rights also constitutionally safeguard these organizations’ core activities. The freedom of religion gives religious groups the right to hold religious ceremonies and engage in religious activities.80 The right to unionize gives unions the right to bargain collectively and pursue the activities necessary for such bargaining.81 The right to form political parties gives parties the right to participate in elections and to engage in political activities.82 When these core activities are restricted, religious groups, trade unions, and political parties can rely upon the constitution to challenge these restrictions. In addition, it is well accepted that these rights require the government to refrain from interfering with these organizations’ internal governance (although for unions and political parties, governments are permitted to impose the requirement that these organizations are internally democratic83). The ability to access corporate form and to protect their core activities improves an organization’s long-​term prospects, which may entice political entrepreneurs to invest in the organization and make it grow stronger. Notably, these investments are usually “asset-​specific,” meaning that they cannot simply be transferred to another organization.84 Asset-​specific investments tie entrepreneurs to the organization and its activities and give them a stake in preserving it.85 If the government were to encroach upon the organization’s rights, political entrepreneurs will have no choice but to use the organization’s resources to protect it. In fact, when the survival of an organization is at stake, the organization will likely fight back with all its resources and manpower. When organizations are particularly strong, governments are unlikely to encroach upon their rights. The reason is that governments know that strong organizations have the capacity to make rights violations politically costly. For instance, the Tunisian government is well aware that crossing the country’s powerful and Nobel Prize–​winning trade union (the UGTT) would severely hurt its popularity. Thus, the mere existence of strong religious groups, trade unions, and

80 See ­chapter 9. 81 See ­chapter 10. 82 See ­chapter 11. 83 See ­chapters 10 and 11. 84 Examples of investments that are asset-​specific include acquiring skills, building relationships with individuals and groups, and the development of organizational and political identities. Paul Pierson, Politics in Time 35 (2004); E.O. Williamson, The Economics of Organization: The Transaction Cost Approach, 87 Am. J. Soc. 548, 555 (1981). 85 Pierson, supra note 84, at 147; James E. Alt et  al., The Political Economy of International Trade:  Enduring Puzzles and an Agenda for Inquiry, 29 Comp. Pol. Stud. 689, 700 (1996); Peter Gourevitch, The Governance Problem in International Relations, in Strategic Choice and International Relations 137, 144–​45 (David A. Lake & Robert Powell eds., 1999); Paul Pierson & Shannon O’Neil Towbridge, Asset Specificity and Institutional Development 12 (Aug. 28, 2002) (unpublished manuscript).

44  THEORY, BACKGROUND, AND METHODS political parties can act as a deterrent against rights encroachment. This can be true regardless of whether the constitution protects the organization. But if our foregoing analysis is correct, then constitutional protections lead to stronger organizations, which, in turn, leads to better respect for these organizations’ rights. The constitution can thus set off a virtuous circle that makes organizations grow strong and renders organizational constitutional rights self-​enforcing.

(3)  The Freedom of Association May Not Help to the Same Extent Organizations that lack constitutional protection as organizations do not enjoy these same advantages. However, when the constitution protects the freedom of association, organizations can rely on this right to protect their interests.86 Among other things, they may be able to rely on the freedom of association to take legal personality and challenge government interference with their internal affairs.87 But, on balance, this right is weaker than the organizational rights that protect specific kinds of organizations directly. When religious groups, trade unions, and parties operate in countries without the protection of the freedom of religion, the right to unionize, or the right to form political parties, they will find that the freedom of association does not protect their core activities in the same way that organizational rights do. The freedom of association does not protect collective bargaining by unions; it does not protect the right to enter the ballot for political parties; nor does it protect the right of religious worship activities for religious groups. It is typically only when these organizations are protected as religious groups, unions, and parties that they can use the constitution to access these rights. The experience of trade unions in America is illustrative. The United States has robust protections of associational rights, and trade unions have legal personality and are free from government interference. Yet, since the U.S. Constitution does not protect a right to unionize, American unions have been hurt in their ability to fight restrictions on their right to bargain collectively. In recent decades, they have been dealt one blow after another by hostile state legislatures (we document some of these initiatives in ­chapter 9). And while they have tried to use the Constitution to resist such initiatives, the lack of a right to unionize has made 86 One finding from our earlier work is that the right to association is associated with better rights protections de facto. We argued that this is also an organizational right: it protects associations, and all kinds of organizations can mobilize to protect the freedom of association. See Adam Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. Pol. Sci. 575 (2016). 87 Office for Democratic Insts. & Human Rights, Joint Guidelines on Freedom of Association, Org. for Sec. & Co-​operation in Europe [OSCE] (2015), https://​www.osce.org/​odihr/​132371.

Organizational Basis of Constitutional Rights Protection  45 it incredibly hard to do so. As unions have lost legal battles, they have grown weaker. The lack of constitutional protection, then, is one of the likely reasons why American trade unions have been weakened and hollowed out. Dedicated human rights organizations can likewise attempt to use the freedom of association to protect their interests. The right might help them access legal personality and to challenge interference with their internal affairs. Yet the freedom of association does not typically protect human rights organizations’ core activities, such as political organizing or human rights education. In fact, some evidence suggests that rights organizations have not been particularly successful in protecting their associational rights. One widely documented phenomenon in the past decade is the “closing space” for civil society. In a remarkable reversal of the so-​called “associational revolution” of the 1990s,88 many countries have seen increased restrictions on the freedom of association.89 From China to Russia to Hungary, governments have been able to get broad consensus behind the claim that the freedom of association does not extend to foreign-​funded civil society organizations, and have adopted laws that restrict the operating space of such organizations, allegedly to protect domestic politics from foreign meddling. Likewise, they have passed sweeping restrictions on the type of organizations that can form, allegedly to protect society from terrorism and extremism. We can only speculate as to why human rights organizations have been unable to resist these measures. One conjecture is that they might not feel the same pressure as religious groups, trade unions, or political parties to resist these measures. To illustrate, an organization dedicated to protecting healthcare rights might not want to divert its time and resources to protecting the freedom of association. This is especially true since the freedom of association is a broad right, and human rights organizations are often unable to foresee whether proposed restrictions on associational rights will affect them directly. As a result, they may fail to take timely action. Another conjecture is that individual rights organizations are simply not as powerful as organized religion, trade unions, or political parties. In this regard, it is notable that religious groups, trade unions, and political parties have in some cases been able to successfully exempt themselves from the laws that restrict associational rights. In Russia, for instance, religious groups, 88 Lester M. Salamon, The Rise of the Non-​Profit Sector, 73 For. Aff. 109, 109 (1994) (reporting an “associational revolution” “that may prove to be as significant to the latter twentieth century as the rise of the nation-​state was to the latter nineteenth”). 89 Thomas Carothers & Saskia Brechenmacher, Closing Space: Democracy and Human Rights Support Under Fire (2014), https://​carnegieendowment.org/​files/​closing_​space.pdf; Kendra Dupuy, James Ron, & Aseem Prakash, Hands Off My Regime! Government’s Restrictions on Foreign Aid to Non-​Governmental Organizations in Poor and Middle-​Income Countries, 84 World Dev. 299, 299 (2016) (reporting that “39 of the world’s 153 low-​and middle-​income countries enacted restrictive funding laws between 1993 and 2012, targeting NGOs operating in-​country with foreign funding”).

46  THEORY, BACKGROUND, AND METHODS trade unions, and political parties are all exempt from the draconian Foreign Agents Law—​which requires political organizations that receive foreign funding to register as foreign agents—​in part due to their own constitutional advocacy.90

(4)  Do Organizations Ensure the Entrenchment of Organizational Rights? We have argued that organizational rights help organizations grow stronger. This observation raises the question whether these constitutional protections themselves are the product of advocacy by organizations. That is, does the causal arrow run in a different direction than we have hypothesized? Instead of organizational rights helping organizations grow strong, do strong organizations successfully entrench their own rights in the constitution and remain strong afterward? In this latter account, the constitution is mostly epiphenomenal: it merely reflects the reality of strong organizations. We do not believe that this alternative account reflects the practice of constitutional rights enforcement. As theorized, the constitution can aid organizations in important ways, and our case studies illustrate how even the strongest organizations use the constitution to protect their interests. But more importantly, this alternative account does not reflect the realities of constitution-​making. The dynamics of constitution-​making have been extensively studied in recent decades, and one of the main findings from the literature is that bills of rights are remarkably standardized, with limited variation from country to country.91 A  number of studies have pointed at similarities that exist in rights provisions across countries, and have observed that constitution makers draw on a limited number of standardized rights templates that tend to track broad divides between legal systems.92 What is more, not only do 90 See ­chapter 11. 91 The structural provisions of constitutions are less standardized and reflect domestic power-​ politics. Judicial review, for example, reflects domestic political calculation. See, e.g., David Erdos, Delegating Rights Protection: The Rise of Bills of Rights in the Westminster World (2010); Jodi Finkel, Judicial Reform as Political Insurance: Argentina, Peru and Mexico in the 1990s (2004); Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in East Asia (2003); Ran Hirschl, Towards Juristocracy:  the Origins and Consequences of the New Constitutionalism 1–​10 (2004). For an account of how structural provisions differ from rights with respect to foreign influence, see Kevin L. Cope, The Intermestic Constitution: Lessons from the World's Newest Nation 53 Va. J. Int'l L. 667 (2012). 92 Global empirical studies include Zachary Elkins, Tom Ginsburg, & Beth Simmons, Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice, 61 Harv. Int’l L.J. 54 (2013) (finding that bills of rights reflect international treaties); Benedikt Goderis & Mila Versteeg, The Diffusion of Constitutional Rights, 39 Int’l Rev. L. & Econ. 1, 1 (2014) (finding that an important predictor of whether a country has adopted a particular right is whether certain other countries previously did the same thing); David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Cal. L. Rev. 1163 (2011) (two latent dimensions explain 90 percent of

Organizational Basis of Constitutional Rights Protection  47 constitution makers frequently seek inspiration from abroad, a surprisingly large number of constitutions are the product of outright coercion, such as the independence constitutions of the former British colonies (described in c­ hapter 5).93 As a result, bills of rights come in a limited number of flavors. Cross-​variation in whether organizational rights are included, then, appears to reflect variation in broad constitutional models rather than variation in organizations’ influence on constitution-​making. Moreover, it is noteworthy that not all powerful organizations enjoy constitutional protections. Corporations, for example, do not typically enjoy direct constitutional protection as corporations. With the exception of the United States—​where corporations have managed to secure constitutional protections to contribute to political campaigns94 and invoke religious protections95—​ corporate rights are simply not part of the global constitutional template (at least not yet).96 For these reasons, we believe that most organizations rely on constitutional provisions that were not a product of their own advocacy. Of course, there are undoubtedly instances in which religious groups, trade unions, and political parties participated in the drafting of the constitution and successfully entrenched their interests. As we document in c­ hapter 10, for the variation in the world’s bills of rights); John W. Meyer et al., World Society and the Nation-​State, 103 Am. J. Soc. 144, 144–​45 (1997); Mila Versteeg, Unpopular Constitutionalism, 89 Ind. L.J. 1133 (2014) (finding that substantive rights provisions are often detached from popular opinion). Qualitative studies include George Athan Billias, American Constitutionalism Heard Around the World, 1776–​1989: A Global Perspective 105 (2009) (describing Latin American constitutions that copied largely verbatim from the U.S. Constitution); Donald L. Horowitz, The Federalist Abroad in the World, in The Federalist Papers 502, 505 (Ian Shapiro ed., 2009); Frederick Schauer, On the Migration of Constitutional Ideas, 37 Conn. L. Rev. 907, 910 (2005); Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale L.J. 1225, 1285–​301 (1999) (describing “bricolage”). 93 See, e.g., Charles Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories 4 (2007). See also Zachary Elkins, Tom Ginsburg & James Melton, Baghdad, Tokyo, Kabul . . . : Constitution Making in Occupied States, 49 Wm. & Mary L. Rev. 1139, 1175–​76 (2008) (identifying that no fewer than forty-​ two constitutions were written during military occupation). 94 Brandon L. Garrett, The Constitutional Standing of Corporations, 163 U. Pa. L.  Rev. 95, 115 (2015). 95 Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014); Douglas Laycock, The Campaign Against Religious Liberty, in The Rise of Corporate Religious Liberty 231(Micah Schwartzman et al. eds., 2016). 96 We searched in the Constitute Project Database for every Constitution mentioning the following words: “corporation,” “corporations,” “corporate,” “company,” “companies,” “commercial enterprise,” “commercial enterprises,” “business organization,” “businesses organizations,” “business entity,” and “business entities.” We did not find any constitutions that contained these terms. This of course does not rule out the possibility that such rights might be protected in judicial decisions. For example, the Israeli Supreme Court, in dicta, has speculated that corporations might have some rights, although it has not ruled decisively on the question. See HCJ 4593/​05 United Mizrahi Bank v. Prime Minister (2006) (Isr.); CA 105/​92 Re’em Eng’rs & Contractors v. Municipality of Upper Nazareth 47(5) PD 189 (1993) (Isr.). We also note that the bill of rights in the South African Constitution applies to “juristic persons.” See Constitution of the Republic of South Africa 1996, art. 8.4 (S. Afr.) (“A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person”).

48  THEORY, BACKGROUND, AND METHODS example, the strong workers’ rights protections in the Tunisian Constitution resulted from the strong involvement of the country’s main trade union in the constitution-​making process. Similar events unfolded in South Africa, where unions were important in the apartheid struggle and subsequently pushed for strong workers’ protections in the post-​apartheid constitution.97 At the same time, such involvement is typically limited to recent constitutions, as participatory constitution-​making has only recently become the norm.98

D.  Democracy and Courts Our core argument is that organizations armed with the constitution can force a government to uphold the constitution. In this sense, we depart from existing accounts in the literature that have emphasized the availability of democratic accountability mechanisms99 and judicial independence as critical mechanism to effectuate rights.100 In our account, what matters is the type of right being threatened, not the type of institutions in the country. Although democratic mechanisms and courts can be successfully used by organizations seeking to resist repression, we believe that organizations are ultimately the key to constitutional 97 Merynn Bennun, Understanding the Nightmare:  Politics and Violence in South Africa, in Negotiating Justice: A New Constitution for South Africa 26, 42 (Merynn Bennun & Malyn Newitt eds.,1995); Lourens M. Du Plessis, A Background to Drafting the Chapter on Fundamental Rights, in The Birth of a Constitution 89, 97 (Bertus de Villiers ed., 1994). 98 See Tom Ginsburg, Zachary Elkins & Justin Blount, Does the Process of Constitution-​Making Matter? 5 Ann. Rev. L. & Soc. Sci. 201 (2009). 99 Beth A.  Simmons, Mobilizing for Human Rights:  International Law in Domestic Politics (2009) (finding that human rights treaties are most effective in transitioning democracies). See also Christian Davenport, State Repression and Political Order, 10 Ann. Rev. Pol. Sci. 1, 11 (2007) (observing that “almost all studies find that democratic political institutions and activities decrease state repressive behavior”). This finding is sometimes referred to as the “democratic civil peace.” See Håvard Hegre et al., Toward a Democratic Civil Peace? Democracy, Political Change and Civil War, 1916–​1992, 95 Am. Pol. Sci. Rev. 33, 44 (2001). 100 Epp, supra note 50; Samuel Issacharoff, Fragile Democracies:  Contested Power in the Area of Constitutional Courts (2015); James Melton, Do Constitutional Rights Matter? (Sept. 16, 2014), https://​pdfs.semanticscholar.org/​e030/​faaef3401760e608dfb9faa13389bd41d377. pdf. On the other hand, studies in the law and society tradition have long downplayed the importance of courts. For example, Scheingold’s classical study on civil rights in America emphasizes the importance of mobilization and de-​emphasizes litigation, since courts and lawyers are conservative agents and institutionally ill-​equipped to enforce their own decisions. Scheingold, supra note 48; see also Jack M. Balkin & Reva Siegel, Principles, Practices and Social Movements, 154 U. Pa. L. Rev. 927, 928, 946 (2006); Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991). As McCann summarizes the literature, “legal mobilization . . . only occasionally involves lawyers or other official actors, including the judges, attorneys and lawyers that are central to the litigation process.” McCann, supra note 48, at 524. Some more recent work in comparative constitutional law shares this skepticism. See, e.g., Tom Ginsburg & Aziz Huq, How to Save a Constitutional Democracy (2018); Tom G. Daley, The Alchemists: Questioning Our Faith in Courts as Democracy-​Builders (2017); Stephen Gardbaum, Are Strong Constitutional Courts Always a Good Thing for New Democracies?, 53 Colum. J. Int’l L. 285, 302–​03 (2015).

Organizational Basis of Constitutional Rights Protection  49 rights enforcement. Crucially, organizations that are unable to impose electoral accountability or litigate can find other ways to punish the government. Thus, while democracy and courts can be important, they are not the main focus of our story.

(1)  Democracy Our quantitative analysis and case studies both reveal that dedicated organizations can have an impact even in authoritarian settings. At first blush, this finding might seem surprising. There is a long-​standing image of authoritarian regimes that operate through brute force and with utter disregard for the rule of law.101 Yet, as a growing body of literature shows, this is not how most authoritarian regimes operate today.102 Many authoritarian leaders are democratically elected and formally maintain democratic laws and institutions. While they certainly abuse these laws for antidemocratic purposes, they maintain outward commitment to democracy, rule of law, and the constitution.103 As Ozan Varol notes, “the new generation of authoritarians cloak repressive measures under the mask of law, imbue them with a veneer of legitimacy and [as a result] render authoritarian practices much more difficult to detect and eliminate.”104 Authoritarian constitutions operate the same way: they appear to be democratic and liberal, but disproportionally favor those in power.105 For example, they may grant sweeping powers to the executive while simultaneously protecting a liberal catalogue of rights. Because of leaders’ outward commitment to the constitution, organized groups of citizens can use these liberal rights provisions to call out certain actions as constitutional violations. Such calls can be surprisingly effective. When authoritarian leaders ignore the constitution outright, they risk undermining the basis for their own powers. As a result, they will at least pretend to uphold the bill of rights, which can slow down their efforts to violate rights.

101 For accounts of classical authoritarianism, see Hannah Arendt, The Origins of Totalitarianism (1973); Carl Joachim Friedrich & Zbigniew K. Brzezinski, Totalitarian Dictatorship and Autocracy (1965); Juan J.  Linz, Totalitarian and Authoritarian Regimes (2000); Karl Loewenstein, Law in the Third Reich, 45 Yale L.J. 779 (1936). 102 Steven Levitsky & Daniel Ziblatt, How Democracies Die (2018); Tom Ginsburg & Aziz Huq, How to Save a Constitutional Democracy (2018). See also Larry Diamond, Elections Without Democracy, 13 J. Democracy 21, 22 (2002); Steven Levitsky & Lucas Way, The Rise of Competitive Authoritarianism, 13 J. Democracy 51, 53 (2002). 103 Ozan O. Varol, Stealth Authoritarianism, 100 Iowa L. Rev. 1673, 1677 (2015). 104 Id. 105 Tom Ginsburg & Alberto Simpser, Introduction, in Constitutions in Authoritarian Regimes 1, 5–​6 (Tom Ginsburg & Alberto Simpser eds., 2013).

50  THEORY, BACKGROUND, AND METHODS Conversely, democracy by itself does not automatically guarantee that constitutional rights will be upheld. Although, in theory, voting against those who violate rights may seem like an easy way to punish rights-​violating governments, this strategy is not always easy to implement. First, for people to engage in enforcement action, they need to be aware of the violations. Creating such awareness requires information campaigns, which, in turn, requires dedicated organizations to run them. Second, for electoral accountability to work, it requires a large number of citizens to care enough about rights violations to change their vote. This is an important limitation of the democratic enforcement mechanism: where majorities support constitutional rights violations, or are indifferent toward them, they are unlikely to switch their vote. In our own survey experiments conducted in Turkey and the United States (presented in ­chapter 8), we find that this crucial condition may not hold. In Turkey, 94 percent of respondents supported the constitution in the abstract, but few changed their support for the government’s Wikipedia ban when they were told that this ban violated the Turkish Constitution. Likewise, Americans showed little willingness to change their support for torturing terrorists when they were told that this violated the Constitution. If most citizens shrug off rights violations, or actively support them, it is impossible to impose electoral accountability for constitutional violations. Importantly, religious groups, trade unions, and political parties do not need broad-​based popular support to be effective. As long as they have dedicated members that care about protecting their interests, they can find ways to impose costs on a government that violates rights. As noted, they can build alliances with other groups, lobby political actors with veto power, litigate, and launch public information campaigns. They can attempt these actions even when rights violations enjoy broad popular support. Imposing such costs is more difficult for dedicated human rights organizations, which are typically smaller and rely on members specifically dedicated to rights protection.

(2)  Courts Similarly, both our quantitative analysis and case studies reveal that dedicated organizations can make an impact even when courts are not fully independent.106 The reason is that litigation is just one of many available strategies to resist rights encroachment. It is not even the most effective strategy: political advocacy is often more powerful. One recent study from China supports this insight: it shows that, while Chinese courts do not enforce the constitution, popular movements 106 See generally Adam Chilton & Mila Versteeg, Courts’ Limited Ability to Protect Constitutional Rights, 85 U. Chi. L. Rev. 293 (2018).

Organizational Basis of Constitutional Rights Protection  51 have, in some cases, been successful in using the Constitution to overturn laws and practices that violate constitutional rights.107 Conversely, it is not obvious that the mere presence of an independent judiciary is a sufficient guarantee for rights to be upheld. On the one hand, there is no doubt that courts can aid rights enforcement by supplying focal points. That is, when there are multiple interpretations over whether certain government actions amount to a constitutional violation, courts can authoritatively answer this question. In most countries, courts are designated as “guardians of the constitution,” with the power to make final and authoritative rulings on the constitutionality of government actions.108 This role for courts is especially important when governments deliberately take advantage of constitutional ambiguities and pursue strategies that are not plainly unconstitutional. On the other hand, it is unclear whether courts can meaningfully play this role without dedicated organizations. First, as mentioned, someone needs to present courts with cases, and strategic litigation requires organizational capacity.109 Second, organizations may be needed to ensure implementation of court rulings. Even when a court clarifies that the constitution has been violated, there is no guarantee that its decision will be enforced. As Alexander Hamilton famously observed, the judiciary lacks “the influence over either the sword or the purse.”110 And the executive branch may not always be inclined to enforce court rulings, especially when its own agenda is at stake. In this sense, the problems with enforcing court rulings are similar to the problems with enforcing the constitution itself.111 Judicial decisions will only be respected if it is politically costly for a government to ignore them. In many instances, this might not be the case. For example, in a recent standoff with the Constitutional Tribunal, the Polish government simply stopped publishing the Tribunal’s decisions (which is a requirement for these decisions to take legal effect), until it packed the Tribunal with sympathetic judges (we recount these events in ­chapter 6). Around the world, there are countless examples of leaders refusing to implement judicial decisions or stripping courts of their powers.112 To make such actions costly, 107 Qianfan Zhang, A Constitution Without Constitutionalism? The Paths of Constitutional Development in China, 8 Int’l J. Const. L. 950, 960–​68 (2010). 108 Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law 79–​90 (2015). 109 Epp, supra note 50. 110 See The Federalist No. 78 (Alexander Hamilton) (deeming the judiciary the “least dangerous” branch). 111 Dieter Grimm, Judges in Contemporary Democracy: An International Conversation, in Judges in Contemporary Democracy: An International Conversation 17, 26 (Robert Badinter & Stephen Breyer eds., 2004) (“It is the specific weakness of constitutional courts that the power is in the hands of those who are affected by their decisions.”); McAdams, supra note 28, at 58; Levinson, supra note 16, at 661. 112 Levinson, supra note 16, at 735 (noting that courts that would insert themselves in areas where “elected officials and their constituents have intense political preferences” would “almost certainly

52  THEORY, BACKGROUND, AND METHODS citizens need to be willing to punish governments that ignore courts, which in turn requires organizations that orchestrate such actions.113 There is some evidence that judicial enforcement can even hurt rights enforcement in some cases. An old insight from the law and society literature is that litigation can come at the expense of broader political mobilization.114 That is, when access to court is easy, individuals might prefer to go to court to protect their rights instead of investing in a broader social movement. As Stuart Scheingold observed in his classical study on rights enforcement, individuals “have an incentive to avoid the task of coalition building because they can go it alone in the courts.”115 We observed this dynamic in our case study on the right to healthcare in Colombia: while hundreds of thousands of Colombians have filed healthcare claims in the courts, for the longest time, no comprehensive healthcare reform was pursued. Thus, the easy availability of judicial remedies can come at the expense of more powerful means of protecting rights. Courts can also hurt rights enforcement when they rule in favor of the government and provide legitimacy to the government’s claim that its actions are constitutional. Political scientists have long observed that courts only rarely issue high-​profile rights decisions against a government.116 This is certainly the case when courts lack independence.117 But even fully independent courts tend to rule mostly in line with majoritarian preferences. Take the example of the U.S.

be defied or disciplined”); Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 Am. J. Pol. Sci. 971, 972 (2009). 113 Epp, supra note 50; Daniel M. Brinks & Varun Gauri, The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights, 12 Perspectives on Politics 375, 381 (2014) (emphasizing the importance of social movements in successful social rights litigation). See also James L. Cavallaro & Stephanie Erin Brewer, Reevaluating Regional Human Rights Litigation in the Twenty-​First Century: The Case of the Inter-​American Court, 102 Am. J. Int’l L. 768, 770 (2008) (noting that decisions of international tribunals are most likely to be implemented when there are groups that can mobilize for their implementation, and who can carry on “long term advocacy campaigns” and push for “better policies on a given issue”). 114 Carolina Smulovitz, Judicialization of Protest in Argentina: The Case of Corralito, in Enforcing the Rule of Law: Social Accountability in New Latin American Democracies 55 (Enrique Peruzzotti & Catalina Smulovitz eds., 2006). 115 Epp, supra note 50, at 13 (describing Scheingold). See also Siri Gloppen, Legal Enforcement of Social Rights:  Enabling Conditions and Impact Assessment, 2 Erasmus L.  Rev. 465, 473 (2009) (“Litigation that is positive for particular individuals and groups and helps to secure their social rights may at the same time have a detrimental effect on the broader advancement of social rights in society.”). 116 Clark, supra note 76; James Gibson & Michael J. Nelson, Is the U.S. Supreme Court’s Legitimacy Grounded in Performance Satisfaction and Ideology?, 59 Am. J.  Pol. Sci. 162 (2015); Hirschl, supra note 91, at 210 (“When contemplating highly charged political questions, constitutional courts . . . tend to adhere to the prevalent worldviews, national meta-​narratives, and interests of influential elites when dealing political mega-​questions.”). 117 Daniel M.  Brinks & Abby Blass, The DNA of Constitutional Justice in Latin America:  Politics, Governance, and Judicial Design 20–​31 (2018) (describing how many courts in Latin America were designed to be “regime allies”).

Organizational Basis of Constitutional Rights Protection  53 Supreme Court. Although it is widely considered to be independent, scholars of the U.S. Supreme Court have long observed that “the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.”118 When a court rules that rights-​ restricting measures are constitutional, it takes away one of the organizations’ most valuable arguments: that the government has violated the constitution. To overcome such a ruling, an organization would have to argue that the court’s interpretation is not the true meaning of the constitution, or that the constitution itself is unjust, which is often not easy. Overall, the role of courts in rights protection is complex and nuanced. Under certain circumstances, courts can help—​especially when they are used strategically by dedicated organizations. But we are less certain that courts can solve the problems inherent in the enforcement of individual rights, as individual rights are less likely to be protected by dedicated organizations and successful litigation efforts require organizational capacity. Ultimately, this book only scratches the surface of the myriad of roles played by courts. While our analysis provides some evidence that courts are not the magic bullet that the literature has made them out to be, we leave many questions unanswered.

E.  Which Rights Are Organizational Rights? We define organizational rights as rights that are “granted to organizations, or, by their nature, are practiced within formal organizations.” This definition, in itself, encompasses two different types of rights:  (1) those that are granted to organizations directly, and (2) those that, by their nature, are practiced within organizations. Our primary examples of rights granted to organizations are the right to unionize and the right to form political parties. In their typical formulation, these rights are directly bestowed upon trade unions and political parties and give these groups the right to establish themselves and to exercise their core activities freely (­chapters 10 and 11 further describe the substantive content of these rights). We recognize that, in theory, there can be other rights like this. For example, in the United States, the Supreme Court has granted certain constitutional rights to corporations, and corporations leverage the Constitution to exercise and defend their rights. The same might be true for constitutional rights

118 See, e.g., Dahl, supra note 51, at 285. See also Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 Cal. L. Rev. 1721, 1750 (2001) (“On only a relative handful of occasions has the Court interpreted the Constitution in ways opposed by a clear majority of the nation.”).

54  THEORY, BACKGROUND, AND METHODS granted to other organizations that represent special interests.119 Yet we believe that union and party rights are the most prominent examples of this kind of organizational right, since they are widely protected in the world’s constitutions. Our primary example of a right practiced within organizations is the freedom of religion. Although religious freedom is granted to individuals, in practice, most people exercise their religion collectively within the framework of an organized religion. What is more, it is widely recognized—​both in international law and by domestic constitutional courts—​that the freedom of religion entails rights that are granted to religious organizations directly, such as the ability to maintain religious buildings and to organize religious activities (­chapter 9 discusses the substantive content of this right). We recognize that there might be other rights of this nature; that is, rights that are granted to individuals, but are practiced within organizations. Among the rights that feature in our analysis, there are three possible candidates: (1) free speech, (2) the right to education, and (3) the right to healthcare. Let us first consider free speech. While free speech is an individual right, in that it gives each individual the right to express her views, the right is often effectuated through the media. At least in theory, media organizations can mobilize against free speech violations, just like religious groups can mobilize against religious freedom violations. Yet, in practice, most media organizations have a different organizational structure than religious organizations. They are not usually membership-​based organizations, and therefore lack members that they can call upon to stage collective action. They also have a different ownership structure: in the vast majority of cases, they are either publicly owned or for-​profit enterprises.120 When media organizations are publicly owned, they are dependent on government funding and support, making it relatively easy for the government to control these organizations. Our Polish case study in ­chapter 6 shows how it was remarkably easy for the new right-​wing populist government to take control of the public media, even though the Polish Constitution stipulates that public 119 See, e.g., Constitución Política de la República de Costa Rica (Political Constitution of the Republic of Costa Rica), Art. 84 (1949) (Costa Rica) (“The University of Costa Rica is an institution of superior culture that enjoys independence in the performance of its functions and of full juridical capacity to acquire rights and to contract obligations, as well as to give itself its own organization and government”); Constitución de 2009 del Estado Plurinacional de Bolivia (Political Constitution of the State), art. 57 (2009) (Bol.) (“Indigenous communes, communities, peoples and nations are recognized and guaranteed . . . the following collective rights: . . . To build and uphold organizations that represent them, in a context of pluralism and cultural, political, and organizational diversity”). 120 In recent years, some have argued in favor of the establishment of nonprofit media organizations because traditional advertising revenues are dropping; yet nonprofit media outlets remain uncommon. Julia Cagé, Saving the Media: Capitalism, Crowdfunding, and Democracy 1 (2016) (proposing a new business model for the media, “a nonprofit media organization, midway between a foundation and a joint stock company” which would allow “media to operate independent of outside shareholders, advertisers, and government, relying instead on readers, employees, and innovative methods of financing, including crowdfunding”).

Organizational Basis of Constitutional Rights Protection  55 media should be independent. By contrast, when media organizations are privately owned, is not obvious that they have the financial incentives to protect free speech. Television shows and newspapers can be profitable even when certain viewpoints are not represented (or precisely because of that!). What is more, leaders seeking to silence criticisms can give powerful financial incentives to media organizations by making them dependent on government advertising. And as we have seen in Russia, they can even acquire ownership of the organization entirely. We believe that the nature of media organizations makes the freedom of expression different from the freedom of religion. While, in theory, the media could turn free speech into an organizational right, we believe that it does not have the same incentives and means as membership-​based non-​profit organizations like religious groups. Similar insights apply to the rights to education and healthcare. We recognize that these rights also potentially have an organizational dimension. While they are granted to individuals, practicing these rights requires the establishment of schools and hospitals, which might be able to mobilize against the encroachment of education and health rights, respectively. But like media organizations, schools and hospitals typically lack a member base they can call upon. What is more, in most countries, a substantial portion of schools and hospitals are run by the government, which likely makes it difficult for these organizations to resist rights violations. When schools and hospitals are for-​profit, by contrast, it is not obvious that they have the incentives to protect healthcare and education rights. After all, a key element of education and healthcare rights is access, and these private institutions are often established to offer high-​end services to the country’s elites. Thus, the economic incentives of running for-​profit schools and hospitals may not align with rights enforcement.121 When schools and hospitals operate as nonprofits, they might be more likely to mobilize for the protection of education and healthcare rights. Yet there is another problem that schools and hospitals have to overcome—​any given school or hospital is unlikely to be powerful enough to make a difference. Even when they are organized, schools and hospitals are not usually politically active in the way that religious groups, unions, or political parties are. Any given school that wants to mobilize thus needs to coordinate with other schools; hospitals likewise need to coordinate with other hospitals. Doing so might run into the same kinds of collective action problems that plague rights enforcement generally. Thus, while on theoretical grounds, we could treat free speech, the right to education, and the right to healthcare as organizational in nature, ​we do not believe 121 Of course, there can be cases where incentives do align, especially when consumers demand for private organizations to care about rights violations. This is the subject of the corporate social responsibility literature.

56  THEORY, BACKGROUND, AND METHODS that the press, schools, and hospitals are particularly well equipped to resist rights encroachment in practice. It is membership-​based non-profit organizations like organized religion, trade unions, or political parties that are most well-​equipped to do so. At the same time, the foregoing analysis shows that the distinction between individual rights and organizational rights is not always sharp, and that individual rights can have organizational features.

F.  Even Strong Organizations Armed with the Constitution Can Fail So far, we have explained how organizations armed with the constitution can force a government to honor its constitutional commitments. We did not, however, consider the different ways in which governments can respond to such actions. A  voluminous literature in political science concerns itself with the question of how and why governments repress their citizens’ rights.122 We do not purport to do justice to that literature here; our main focus is on those who seek to enforce the constitution. There is no doubt, however, that the government’s response matters. Notably, when a government cracks down in full force, there is little that a constitution can do to stop it. Few organizations will be able to use the constitution to resist the Idi Amins, Pol Pots, Joseph Stalins, or Adolf Hitlers of the world. Yet few governments today govern through brute force. As previously mentioned, today’s authoritarian leaders are typically elected and maintain nominally democratic institutions like a constitutional court and a liberal bill of rights.123 They pay lip service to these democratic institutions to appear legitimate, while at the same time modifying them to amplify their own power. They also eschew the old strategy of controlling all sectors of society through brute force, using more subtle forms of repression instead.124 It is because of this shift that the mechanisms we describe in this chapter can work. It is those governments that

122 See, e.g., James A. Robinson & Daron Acemoglu, Economic Origins of Dictatorship and Democracy 15, 30, 322 (2005); Christian Davenport, Multi-​Dimensional Threat Perception and State Repression: An Inquiry into Why States Apply Negative Sanctions, 39 Am. J. Pol. Sci. 683, 703 (1995); Abel Escribà-​Folch, Repression, Political Threats, and Survival Under Autocracy, 34 Int’l Pol. Sci. Rev. 543, 556 (2013). How and why authoritarian regimes repress is subject to substantial debate. See, e.g., Christian Davenport, State Repression and the Tyrannical Peace, 44 J. Peace Res. 485, 500 (2007). 123 Varol, supra note 103, at 1684; Ginsburg & Simpser, supra note 105, at 5–​6. For an account of how and why authoritarian regimes institutionalize their power, see Anne Meng, Constraining Dictatorship: From Personalized Rule to Institutionalized Regime (2020). 124 Milan W. Svolik, The Politics of Authoritarian Rule (2012).

Organizational Basis of Constitutional Rights Protection  57 want to be seen as playing by the rules of the constitution that can be pressured to change their behavior.125 But with sufficient determination, even leaders with nominal commitment to the constitution can usually find ways to circumvent it. One increasingly common strategy to silence dedicated groups is to co-​opt them. This strategy has been particularly successful in silencing the press. Co-​optation can also be tried for organized religion, labor unions, and political parties. While doing so is less straightforward because these organizations may not respond as well to financial incentives and cannot simply be taken over, governments can nonetheless grant them certain privileges and attempt to silence criticism this way. Take the example of Vladimir Putin and the Russian Orthodox Church, who have a mutually beneficial agreement whereby the Russian Orthodox Church delivers Putin the Orthodox vote, and, in return, Putin promotes the traditional and religious values that are important to the Church.126 The alliance is valuable to the Russian Orthodox Church, which mostly refrains from criticizing the government. At the same time, it is noteworthy that when the government pursued initiatives to curtail religious freedom, the Russian Orthodox Church did not hesitate to speak out against those initiatives. Thus, although this type of alliance may make organizations less likely to speak out against the government in general, they likely remain motivated to defend their own rights when necessary. Leaders also can weaken organizations by dividing them. For instance, some governments have encouraged the establishment of multiple trade unions with the aim of creating competition between unions to reduce their strength overall. This divide-​and-​conquer strategy was successfully used by Zambia’s first democratically elected president, Frederick Chiluba. As the former leader of the union that was instrumental in ending three decades of authoritarian rule,127 Chiluba was well aware that the country’s main union was a mighty political force. He therefore deliberately sought to promote the establishment of more unions.128 As unions mushroomed, the government elected as its social partners those unions that did not criticize it. Since most unions sought this coveted relationship with the government, they halted their government criticism and, as a result, ceased to be a major political force. These divide-​and-​conquer strategies are hard to characterize as violations of organizational rights, since these leaders are actually promoting the establishment 125 Zhang, supra note 107, at 957 (finding that, in an authoritarian state like China, “popular consciousness and support for the Constitution, however minimal the impact, has made a decisive difference in certain situations”). 126 See, e.g., Vladimir Putin, Presidential Address to the Federal Assembly, December 1, 2016, http://​en.kremlin.ru/​events/​president/​transcripts/​53379. 127 Adrienne LeBas, From Protest to Parties: Party Building and Democratization in Africa 83–​87 (2011). 128 Darlington Banda, The Trade Union Situation in Zambia (1997).

58  THEORY, BACKGROUND, AND METHODS of new organizations. Yet they illustrate how leaders dedicated to controlling organizations can pursue a range of strategies to reduce organizational strength. Co-​optation and divide-​and-​conquer are not the only strategies available for governments that are trying to outmaneuver their constitution. Authoritarian leaders tend to play the long game. Attempts to curtail rights that fail due to strong opposition often pass a few years later, when groups are not paying attention or after proposals have been altered somewhat to make violations less blatant. Another strategy is to appeal to competing rights values, and use those to gather support for rights restrictions. Rights protection, then, is an ongoing battle, and governments will often exploit weaknesses as soon as they find them. While we do not purport to capture the full set of strategies that governments employ to violate the constitution, the basic insight is that, given enough time, they often get their way. As a result, constitutional rights employed by committed organizations can act as “speedbumps” that slow down repression, but they do not guarantee that the constitution will be upheld.

3

Existing Evidence A.  Jefferson and Madison’s Unsettled Debate On December 20, 1787, Thomas Jefferson wrote James Madison to voice an important objection to the proposed U.S. Constitution: it did not include a bill of rights.1 More precisely, Jefferson worried about “the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury. . . .”2 He argued that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference.”3 In a return letter, Madison noted that his “own opinion has always been in favor of a bill of rights,”4 but raised an important empirical concern over the effectiveness of such a bill of rights. Madison argued that “experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed.”5 Madison’s skepticism on rights’ effectiveness was based on his observations of the American states. He observed that “repeated violations of these parchment barriers have been committed by overbearing majorities in every State” and that in Virginia, he had “seen the bill of rights violated in every instance where it has been opposed to a popular current.”6 In a follow-​up letter, Jefferson agreed with Madison that “experience proves the inefficacy of a bill of rights. True.”7 But Jefferson was more optimistic about its prospects, observing that, while a bill of rights “is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious.”8 He added that his “most formidable dread at 1 Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 12 The Papers of Thomas Jefferson 438, 440 (Julian P. Boyd ed., 1955). 2 Id. 3 Id. 4 Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 The Papers of James Madison 295, 297 (Robert A. Rutland & Charles F. Hobson eds., 1977). 5 Id. 6 Id. at 299. At the same time, Madison conceded that, even if bills of rights are unlikely to stop popular majorities, the bill of rights can help to stop the advancement of “artful and ambitious rulers” who seek to erect a government that aims at “the subversion of liberty.” Id. 7 Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson 659, 660 (Julian P. Boyd ed., 1958). 8 Id. How Constitutional Rights Matter. Adam Chilton & Mila Versteeg, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190871451.001.0001

60  THEORY, BACKGROUND, AND METHODS present” was “the tyranny of the legislatures,” and that without a bill of rights, we may see a “constant progression from bad to worse.”9 Although the U.S. Constitution ended up with a bill of rights, the empirical question that motivated this exchange of letters was never resolved. Two centuries later, we still have no firm answer on whether bills of rights actually make a difference. Indeed, scholars remain divided over how effective the U.S. bill of rights has been in constraining the government, and we have even fewer answers on a global scale.10 But that does not mean that the importance of the question has diminished. While the overwhelming majority of constitutions today include a bill of rights, constitution makers continue to debate which rights to include, and new rights continue to be added. Should the constitution protect freedom of religion? Prohibit torture? Formally recognize gender equality? Guarantee access to a basic education? Protect LGBTQ rights? Questions like these were debated in eighteenth-​century Philadelphia, in twenty-​first-​century Katmandu, and hundreds of times in between.11 This chapter evaluates the existing body of evidence on constitutional rights effectiveness. Because most legal scholars operate under the assumption that rights matter, we begin by very briefly reviewing some of the normative arguments for including rights. We then proceed to discuss existing qualitative and quantitative studies on rights effectiveness. Finally, we discuss some of the core findings from a related literature on human rights treaty effectiveness.

B. Normative Evaluations There is a strong normative consensus in the comparative constitutional law literature that rights belong in a constitution. Rights that place constraints upon the government are seen as a defining feature of constitutions and constitutionalism.12 Moreover, many

9 Id. at 661. 10 See, e.g., Christopher Berry & Charles Wysong, Making Courts Matter:  Politics and the Implementation of State Supreme Court Decisions, 79 U. Chi. L. Rev. 1 (2012) (describing studies that have explored the impact of judicial enforcement of the U.S. Constitution). 11 Constitution-​making happens frequently. On average, countries rewrite their constitution once a generation. See Zachary Elkins, Tom Ginsburg, & James Melton, The Endurance of National Constitutions (2009). They further frequently amend the document in between. See Mila Versteeg & Emily Zackin, Constitutions Unentrenched: Towards an Alternative Theory of Constitutional Design, 110 Am. Pol. Sci. Rev. 657 (2016). 12 See, e.g., Richard Bellamy, Political Constitutionalism:  A Republican Defence of the Constitutionality of Democracy 15 (2007) (“nothing has been so influential in driving constitutionalism along the path of legal rather than political thought than the emphasis on rights . . .”); Stephen Gardbaum, The Place of Constitutional Law in the Legal System, in The Oxford Handbook of Comparative Constitutional Law 169, 176–​77 (Michel Rosenfeld & András Sajó

Existing Evidence  61 theorists view constitutional rights as a key feature of liberal democracy itself.13 The main reason why rights are thought to belong in a constitution is that they are supposed to constrain government power and guard against repression.14 Constitutional rights draw certain lines that the government cannot cross. When a government crosses the boundaries set by the constitution, this will be plain for all to see, and therefore politically costly.15 What is more, in most countries, courts are empowered to police those boundaries by exercising the power of judicial review.16 These boundaries cannot simply be redrawn, as constitutional rights are typically entrenched, meaning that they cannot simply be removed or amended.17 Constitutional rights, therefore, are widely seen as safeguards against repressive government. Not only do rights seek to protect people from repressive rulers, they also seek to protect minorities from the tyranny of the majority. The constitution protects minorities that are perpetually outvoted in the political process by granting them rights that democratic majorities cannot easily infringe upon.18 One influential theory holds that constitutional rights serve as precommitment devices that solve time-​inconsistency problems.19 That is, they force democratic majorities to honor their commitments from the time of constitution-​writing even when these commitments become politically inconvenient.20 Democratic majorities are forced to do so presumably because they cannot simply change the constitution and courts will strike down initiatives that violate them. As Benjamin Franklin allegedly put it: “[a]‌democracy is two wolves and a small lamb voting on what to have for dinner. Freedom under a constitutional republic is a well-​armed lamb

eds., 2012) (“The incorporation of a bill of rights into constitutional law—​with its usual characteristics of supremacy, entrenchment, and judicial enforceability—​has been a standard feature, one we now associate with a ‘normal’ state”). 13 John Hart Ely, Democracy and Distrust 73 (1980); Cass R.  Sunstein, Designing Democracy: What Constitutions Do 97 (2001). See also Tom Ginsburg, Aziz Z. Huq, & Mila Versteeg, The Coming Demise of Liberal Constitutionalism, 85 U. Chi. L. Rev. 239, 239 (2018). 14 András Sajó, Limiting Government:  An Introduction to Constitutionalism 248 (1999). 15 Barry Weingast, Political Foundations of Democracy and the Rule of Law, 91 Am. Pol. Sci. Rev. 245 (1997). 16 See, e.g., Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of Rights, 10 South African Journal on Human Rights 31 (1994) (arguing that judicially enforced bills of rights are meant to bring about a “culture of justification”). 17 Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 Am. Pol. Sci. Rev. 355 (1994). 18 Normative theorists have divided opinions about whether, and to what extent, public policy objectives can justify rights restrictions. Compare, e.g., Ronald Dworkin, Taking Rights Seriously xi (1977) (describing rights as “trumps”) with, e.g., Fredrick Schauer, A Comment on the Structure of Rights, 27 Ga. L. Rev. 415, 443 (1993) (describing rights in the United States as “shields”). 19 Cass Sunstein, Constitutionalism and Secession, 58 U. Chi. L. Rev. 633, 637–​38 (1991). 20 See, e.g., Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality 94 (1979); Stephen Holmes, Passions and Constraints 134 (1996).

62  THEORY, BACKGROUND, AND METHODS contesting the vote.”21 Rights, then, are supposed to arm the lamb against the wolves. Many of these foundational constitutional theories rest upon empirical assumptions about rights; yet these assumptions are rarely interrogated. As Jack Goldsmith and Daryl Levinson observe, constitutional scholars for the most part assume that “simply writing down a rule of constitutional law . . . will somehow automatically constrain the behavior of the government officials subject to that rule.”22 The widespread belief that rights matter is not confined to the academy: rights are also enthusiastically promoted by the transnational rule-​of-​law community.23 Indeed, when a constitution is (re-​)written, a community of transnational actors typically descends upon this country to offer assistance in constitution-​writing.24 These actors range from international financial institutions such as the World Bank, to international governmental organizations such as the International Institute for Democracy and Electoral Assistance (IDEA), to governmental entities such as the Max Planck Institute, to nongovernmental organizations pushing for more specific values.25 The involvement of transnational actors pushing for constitutional rights has recently been reported in countries including South Sudan, 26 Iraq, 27 Bosnia and Herzegovina,28 Kenya,29 and Nepal.30 21 It is debated whether Benjamin Franklin actually said this. 22 Jack Goldsmith & Daryl J. Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791, 1830 (2009). See also David Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment 14 (2011) (“There is an implicit faith that constitutions, in tandem with legal systems, will ensure the protection and fulfillment of rights.”); Frederick Schauer, Comparative Constitutional Compliance: Notes Towards a Research Agenda, in Practice and Theory in Comparative Law 212, 229 (Maurice Adams & Jacco Bomhoff eds., 2012). 23 Ran Hirschl, Towards Juristocracy:  The Origins and Consequences of the New Constitutionalism 47 (2007); Kirsti Samuels, Rule of Law Reform in Post-​ Conflict Countries: Operational Initiatives and Lessons Learnt, 37 Soc. Dev. Publications 12 (2006) (listing constitutions and constitution-​making as one of the key ingredients of rule-​of-​law reform). 24 Gillian Hadfield & Barry Weingast, Microfoundations of the Rule of Law, 17 Ann. Rev. Pol. Sci. 21, 26 (2014) (stating that “billions of dollars in international aid” have been devoted to creating the rule of law); Jothie Rajah, Rule of Law as a Transnational Legal Order, in Transnational Legal Orders 340, 353 (Terrence Halliday & Gregory Shaffer eds., 2015); Daniel B. Rodriguez et al., The Rule of Law Unplugged, 59 Emory L.J. 1455, 1460 (2010). 25 Hirschl, supra note 23, at 46–​47. 26 Kevin L.  Cope, South Sudan’s Dualistic Constitution, in The Social and Political Foundations of Constitutions 295, 304 (Denis Galligan & Mila Versteeg eds., 2013). 27 Noah Feldman, Imposed Constitutionalism, 37 Conn. L. Rev. 847, 858 (2005). 28 James C. O’Brien, The Dayton Constitution of Bosnia and Herzegovina, in Framing the State in Times of Transition: Case Studies in Constitution Making 332, 337 (Laurel E. Miller ed., 2010) (“The international community ruled Dayton by the sheer number of its participants.”). 29 Alicia L. Bannon, Designing a Constitution Drafting Process: Lessons from Kenya, 116 Yale L.J. 1824, 1859 (2007) (reporting the involvement of the World Bank and the International Monetary Fund in several of Kenya’s constitutional reform initiatives). 30 Tracy Fehr, Nepal’s New Constitution Leads Region in LGBTI Rights, Huffington Post (Oct. 5, 2015), http://​www.huffingtonpost.com/​tracy-​fehr/​nepal-​constitution-​lgbti-​rights_​b_​8239360.html

Existing Evidence  63 Because constitutional rights are believed to be beneficial, the general tenor in both academic and policy circles is that adopting more rights is better. While there used to be debate about whether social rights, such as the right to education, healthcare, housing, or social security, belong in a constitution, there is now a near-​universal consensus that constitutional social rights are desirable.31 Likewise, there is a growing consensus that environmental rights deserve constitutional protection,32 along with the rights of indigenous people and minority groups,33 the rights of consumers,34 and even animal rights.35 What is more, one study has found that, as constitution-​making has become more participatory, the number of rights enumerated in the constitution increases.36 Only a few contrarian voices have suggested that there can be too much of a good thing. Mary Ann Glendon has questioned whether a growing catalogue of rights actually contributes to better rights protection. She argues that large catalogues of rights will produce competing rights values, which “may well trivialize this essential core without materially advancing the proliferating causes that have been reconceptualized as involving rights.”37 Eric Posner has made the same argument about international human rights law. According to Posner, “if there were only a few rights it would seem simple enough to determine whether states comply with them.”38 When there are many rights, however, states are basically free to pick and choose the rights that they focus on, because it is not possible to protect them all at once. Yet, such voices remain a minority in the literature and appear to have had no impact on the practice of constitution-​making.

(documenting the participation of the Blue Diamond Society in the enshrining of LGBTQI rights in the new Nepali Constitution). 31 See David Landau, The Reality of Social Rights Enforcement, 53 Harv. Int’l L.J. 189, 190 (2012). 32 Boyd, supra note 22, at 13–​14. 33 Jarle Weigård, Is There a Special Justification for Indigenous Rights?, in Indigenous Peoples: Self-​determination, Knowledge, Indigeneity 177 (Henry Minde ed., 2008). 34 Sinai Deutch, Are Consumer Rights Human Rights?, 32 Osgoode Hall L.J. 537 (1994). 35 Germany amended its constitution in 2002 to include a duty for the government to protect animals. Gesetz zur Änderung des Grundgesetzes (Staatsziel Tierschutz) [Law Amending Basic Law (Animal Protection State Objective)], July 26, 2002, BGBl I  at 2862 (Ger.); see also Kirsten Stilt, Constitutional Innovation and Animal Protection in Egypt, 43 Law & Soc. Inquiry 1364 (2018). 36 Tom Ginsburg, Zachary Elkins, & Justin Blount, Does the Process of Constitution-​Making Matter?, 5 Ann. Rev. L. & Soc. Sci. 201 (2009). 37 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, at xi, 16 (1991). 38 Eric A.  Posner, The Twilight of Human Rights Law 92–​94 (2014); see also Jacob Mchangama & Guglielmo Verdirame, The Danger of Human Rights Proliferation, Foreign Aff.: Snapshot (July 24, 2013), https://​www.foreignaffairs.com/​articles/​europe/​2013-​07-​24/​danger​human-​rights-​proliferation.

64  THEORY, BACKGROUND, AND METHODS

C.  Research on the Effectiveness of Constitutional Rights Although much of the literature simply assumes that rights matter, some prior research has explored the question empirically. A  number of studies by legal scholars working in the law and society tradition have explored the impact of constitutional rights through qualitative case studies. Some social scientists have used quantitative methods to take up the same question. These studies provide important insights into whether and how constitutional rights matter. At the same time, as we discuss later, there are important limitations in what we can infer from them. We should note that we only review literature on rights effectiveness here, not studies that evaluate the impact of other constitutional design features, such as electoral systems,39 debt-​borrowing provisions,40 or federalism.41 We also set aside here the substantial literature on the impact of courts, judicial activism, and judicial independence,42 including studies that evaluate the impact of judicial decisions.43 Further, we do not review the literatures in political economy that 39 See, e.g., Torsten Persson & Guido Tabellini, The Economic Effects of Constitutions (2003). Notwithstanding this book’s title, electoral systems are not typically constitutionalized. The impact of electoral systems generally has been widely analyzed in the social sciences. See, e.g., Arend Lijhart, Patterns of Democracy (2012); Pippa Norris, Electoral Engineering:  Voting Rules and Political Behavior (2004). 40 D. Roderick Kiewiet & Kristin Szakaty, Constitutional Limitations on Borrowing: An Analysis of State Bonded Indebtedness, 12 J.L. Econ. & Org. 62 (1996). 41 See, e.g., Gerard Blasi & David Cingranelli, Do Constitutions and Institutions Help Protect Human Rights?, in Human Rights and Developing Countries 223 (David Cingranelli ed., 1996); Evelyne Huber et  al., Social Democracy, Christian Democracy, Constitutional Structure, and the Welfare State, 99 Am. J. Soc. 711 (1993). 42 Some studies have focused on the impact of judicial independence on property rights and economic growth. See, e.g., Michael Gilbert, Judicial Independence and Social Welfare, 112 Mich. L. Rev. 575 (2014); 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); Stefan Voigt, Michael Eberling, & Lorenz Blume, Improving Judicial Credibility by Delegating Judicial Competence: The Case of the Judicial Committee of the Privy Council, 82 J. Dev. Econ. 384 (2007). Others have focused on the impact on human rights. See, e.g., M. Rodwan Abouharb, Laura P. Moyer, & Megan Schmidt, De Facto Judicial Independence and Physical Integrity Rights, 12 J. Hum. Rts. 367 (2013); Charles Crabtree & Michael Nelson, New Evidence for a Positive Relationship Between De Facto Judicial Independence and State Respect for Empowerment Rights, 61 Int’l Stud. Q. 210 (2017); Frank Cross, The Relevance of Law in Human Rights Protection, 20 Int’l Rev. L. & Econ. 87 (1999); Linda Camp Keith, C. Neal Tate, & Steven C. Poe, Is the Law a Mere Parchment Barrier to Rights Abuse?, 71 J. Pol. 644 (2009); Linda Camp Keith, Judicial Independence and Human Rights Around the World, 85 Judicature 195 (2002); Emilia Justyna Powell & Jeffery K. Staton, Domestic Judicial Institutions and Human Rights Treaty Violation, 53 Int’l Stud. Q. 149 (2009). But see Courtenay Ryals Conrad & Will H. Moore, What Stops the Torture?, 54 Am. J. Pol. Sci. 459 (2010). 43 See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991); Consequential Courts:  Judicial Roles in Global Perspectives (Diana Kapiszewski et al. eds., 2013); Courts in Latin America (Gretchen Helmke & Julio Rios-​Figueroa eds., 2014); Leveraging the Law:  Using the Courts to Achieve Social Change (David A. Schultz ed., 1998). This includes a voluminous quantitative literature on school finance litigation in the United States. See, e.g., David Card & A. Abigail Payne, School Finance Reform, The Distribution of School Spending, and the Distribution of Student Test Scores, 83 J. Pub. Econ. 49 (2002); Katherine

Existing Evidence  65 have explored the impact of various constitutional arrangements on economic growth44 or the emerging literature on the impact of the process of constitution-​ making.45 Moreover, even within the literature on the effectiveness of bills of rights, we only review studies that use empirical methods (either qualitative or quantitative), not studies that make mere casual observations on constitutional rights’ effectiveness. We also only partially review the literature on human rights treaty effectiveness—​chiefly those quantitative studies most relevant to our own work—​and thus set aside many qualitative studies on how international human rights law has shaped social movements globally.46 Finally, we also do not discuss our own prior research on this topic here because we instead present it in the relevant substantive chapters.

(1) Qualitative Studies A number of qualitative case studies examined whether and how constitutional rights matter through the concept of a “rights revolution.”47 Perhaps most well known is Charles Epp’s famous study of “rights revolutions” in the United States, India, Canada, and the United Kingdom.48 Epp found that constitutional rights

Baicker & Nora Gordon, The Effect of State Education Finance Reform on Total Local Resources, 90 J. Pub. Econ. 1519, 1519 (2006) (finding that school finance litigation leads to more education spending, but at the expense of other public welfare programs, including healthcare); Sheila E. Murray, William N. Evans, & Robert M. Schwab, Education-​Finance Reform and the Distribution of Education Resources, 88 Am. Econ. Rev. 789 (1998) (finding that court-​ordered equity reforms reduced inequality in local education spending within states by up to one-​third); David P. Sims, Lifting All Boats? Finance Litigation, Education Resources, and Student Needs in the Post-​Rose Era, 6 Educ. Fin. & Pol’y 455 (2011); Matthew G. Springer, Keke Liu, & James W. Guthrie, The Impact of School Finance Litigation on Resource Distribution: A Comparison of Court‐Mandated Equity and Adequacy Reforms, 17 Educ. Econ. 421 (2009); Christopher Berry, The Impact of School Finance Judgments on State Fiscal Policy, in School Money Trials: The Legal Pursuit of Educational Adequacy 213 (Martin R. West & Paul E. Peterson eds., 2006). 44 See, e.g., Xavier de Vanssay & Z.A. Spindler, Freedom and Economic Growth: Do Constitutions Matter?, 78 Pub. Choice 359 (1994); La Porta et al., supra note 42. 45 See Todd Eisenstadt, A.  Carl LeVan, & Tofigh Maboudi, Constituents Before Assembly:  Participation, Deliberation, and Representation in the Crafting of New Constitutions (2017); Todd Eisenstadt, A. Carl LeVan, & Tofigh Maboudi, When Talk Trumps Text: The Democratizing Effects of Deliberation During Constitution-​Making 1974–​2011, 109 Am. Pol. Sci. Rev. 592 (2015). 46 See, e.g., Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998); Thomas Risse, Stephen C.  Ropp, & Kathryn Sikkink, The Power of Human Rights: International Norms and Domestic Change (1998); Alison Brysk, Speaking Rights to Power: Constructing Political Will (2013); Kiyoteru Tsutsui, Rights Make Might: Global Human Rights and Minority Social Movements in Japan (2018). 47 Boyd, supra note 22; Charles Epp, The Rights Revolution:  Lawyers, Activists and Supreme Courts in Comparative Perspective (1998). 48 Epp, supra note 47.

66  THEORY, BACKGROUND, AND METHODS are important, as they “may become rallying symbols for social movements and may provide footholds for lawyers’ arguments and foundations for judicial decisions.”49 But Epps also found that countries not only need enumerated rights and independent courts but also “a support structure for legal mobilization.”50 Such a support structure consists of “rights-​advocacy organizations, rights-​advocacy lawyers, and sources of financing, particularly government-​ supported financing.”51 When such a support structure is in place, countries may experience a rights revolution. Thus, Epp’s claim is somewhat similar to ours: rights matter when they are enforced by organizations. Likewise, David Boyd more recently proclaimed the rise of a global “environmental rights revolution.”52 After surveying environmental constitutional protections around the world, along with how they have been enforced, Boyd found that constitutional protections of the environment have spurred governments to adjust their environmental law and have produced constitutional litigation.53 This led him to conclude that “constitutional provisions requiring environmental protection appear to provide a range of benefits, including stronger laws, enhanced public participation, and improved environmental performance.”54 Other qualitative studies have focused on a single country.55 Michael McCann’s classic study of workers’ rights in the United States found that legal protections of workers’ rights and access to independent courts helped unions progressively realize pay equality.56 While McCann’s focus was on the Equal Pay Equity Act of 1963 and the 1964 Civil Rights Act, rather than the Constitution, it showed how unions and labor advocates used the law to advance their claims.57 A number of Canadian scholars have evaluated the impact of the 1983 Charter of Rights and Freedoms and have reached mixed conclusions. Some found that the Charter has spurred progressive Supreme Court decisions,58 while others 49 Id. at 5. 50 Id. at 3. 51 Id. 52 Boyd, supra note 22. 53 Id. at chs. 2, 6–​10. 54 Id. at 6–​7. 55 This section does not purport to give a comprehensive overview of all country-​studies on constitutional rights effectiveness; it merely features some prominent examples. 56 Michael McCann, Rights at Work:  Pay Equity Reform and the Politics of Legal Mobilization 4 (1994). 57 Id. at 35. 58 Donald R. Songer, Susan W. Johnson, & Jennifer Barnes Bowie, Do Bills of Rights Matter? An Examination of Court Change, Judicial Ideology, and the Support Structure for Rights in Canada, 51 Osgoode Hall L.J. 297, 300 (2013) (“[T]‌he adoption of the Charter had a profound effect on changes in the rights agenda of the Court[.]”); Kirsten Matoy Carlson, Does Constitutional Change Matter? Canada’s Recognition of Aboriginal Title, 22 Ariz. J. Int’l & Comp. L. 449, 456–​57 (2005) (finding that “section 35 [protecting aboriginal rights] has influenced Aboriginal title litigation because both Aboriginal peoples and the Supreme Court of Canada rely on section 35 in their presentation and analysis of these claims,” but noting that that broader social forces, such as the composition

Existing Evidence  67 found an impact that is conditional upon support for litigation,59 or that the Charter has been more effective at protecting some rights than others.60 Another recent case study has explored the impact of the Chinese Constitution’s rights provisions, and found that although judicial enforcement never went anywhere, public protests against constitutional violations improved respect for constitutional rights in some instances.61 A recent wave of comparative constitutional law scholarship has focused on social rights specifically.62 Much of the literature on social rights is normative and doctrinal, but recent studies have started to explore the impact of social rights and social rights litigation.63 The picture that emerges from these studies is mixed. Some have documented how social rights can bring social justice to underprivileged groups.64 Yet others have raised concerns over the lack of judicial

of the judiciary and the presence of support structures, also played a role in increasing the frequency of aboriginal rights litigation). 59 Carlson, supra note 58, at 456–​57; Charles R. Epp, Do Bills of Rights Matter? The Canadian Charter of Rights and Freedoms, 90 Am. Pol. Sci. Rev. 765, 775 (1996) (noting that the rights revolution in Canada was only partially caused by the Charter itself, instead pointing at “the shift to a discretionary docket in 1975 and the development of a support structure for legal mobilization”). 60 Harry W. Arthurs & Brent Arnold, Does the Charter Matter?, 11 Rev. Const. Stud. 37, 77, 79, 87, 94 (2005) (finding that the “Charter does not in fact seem to have mattered very much in the sense that Canada today differs in relevant respects only modestly, if at all, from Canada as it was in 1982,” but noting that more progress has been made in the areas of LGBT rights and women’s rights than in the area of immigration, minority rights, or criminal justice). The most damning study, which concluded that the “Charter is only paper, dead tree, with ink on it” was more normative than empirical, and appeared to be a critique of the Supreme Court’s unwillingness to find strong social rights in the Charter. Joel Balkan, Just Words: Constitutional Rights and Social Wrongs 3 (1997). 61 Qianfan Zhang, A Constitution Without Constitutionalism? The Paths of Constitutional Development in China, 8 Int’l J. Const. L. 950, 951–​52 (2010). 62 See, e.g., Social Rights Jurisprudence:  Emerging Trends in International and Comparative Law Social Rights Jurisprudence (Malcolm Langford ed., 2009); Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Varun Gauri & Daniel M.  Brinks eds., 2008). See ­chapter  7 for a fuller account of this literature. 63 See, e.g., Malcolm Langford, César Rodriguez-​ Garavito, & Julieta Rossi, Introduction: From Jurisprudence to Compliance, in Social Rights Judgments and the Politics of Compliance: Making It Stick 3, 3 (Malcolm Langford et al. eds., 2017). 64 See, e.g., Daniel M. Brinks & Varun Gauri, The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights, 12 Perspectives on Politics 375, 386 (2014); Poorvi Chitalkar & Varun Gauri, India: Compliance with Orders on the Right to Food, in Social Rights Judgments and the Politics of Compliance, supra note 63, at 288 (describing how right to food cases made a difference in India, although the realization of this right was not effective until the Supreme Court adopted a more progressive ruling such as creating a committee to oversee compliance monitoring); Carole Cooper, Health Rights Litigation:  Cautious Constitutionalism, in Litigating Health Rights: Can Courts Bring More Justice to Health? 190, 222–​23 (Alicia Ely Yamin & Siri Gloppen eds., 2011) (observing that “both litigation itself and settlements in the ‘shadow of litigation’ have led to important policy changes and transfers of health goods and services to poor and vulnerable groups in South African society.”); César Rodríguez-​Garavito, Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America, 89 Tex. L. Rev. 1669 (2010).

68  THEORY, BACKGROUND, AND METHODS enforcement in some countries65 as well as the lack of implementation of court rulings.66 Other studies have found that social rights litigation mainly benefits the middle classes and not those most in need. For example, David Landau’s case study on Colombia showed that the combination of constitutionally entrenched social rights and courts’ widespread enforcement of these rights has provided many people with the option to enforce their rights.67 Yet the main beneficiaries have been higher income groups that can afford to go to court, and not the poorest of the poor.68 Studies on Brazil have drawn similar conclusions.69 Yet other studies contest these findings, and the distributive effect of social rights remains a topic of debate in the literature.70 On balance, then, the impression from the qualitative literature is that, although the pathways may be complex and indirect, constitutional rights have the potential to bring about meaningful change. The qualitative studies thus offer some cause for optimism on rights’ ability to constrain government. But while existing qualitative accounts provide some cause for optimism, it is important to be mindful of their limitations. First, the qualitative comparative literature has focused on a limited set of countries: those with relatively strong legal systems, respect for the rule of law, and independent courts.71 By contrast,

65 See, e.g., Elin Skaar & José Octávio Serra Van-​ Dúnem, Courts Under Construction in Angola:  What Can They Do for the Poor, in Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? 213, 213 (Roberto Gargarella et al. eds., 2006) (“To date, Angolan courts have not passed judgment in any single case that may be classified as a social litigation case[.]‌”); Cooper, supra note 64, at 222. 66 Langford et al., supra note 63, at 3 (noting that “both advocates and scholars have raised the alarm that a significant number of judgments on ESC rights remain unimplemented”); Jonathan Berger, Litigating for Social Justice in Post-​Apartheid South Africa: A Focus on Health and Education, in Courting Social Justice, supra note 62, at 38 (Varun Gauri & Daniel M. Brinks eds., 2008); Bruce M. Wilson & Olman A. Rodríguez, Costa Rica: Understanding Variations in Compliance, in Social Rights Judgments and the Politics of Compliance, supra note 63, at 111. 67 Landau, supra note 31, at 192. See also András Sajó, Social Rights as Middle-​Class Entitlements in Hungary: The Role of the Constitutional Court, in Courts and Social Transformation in New Democracies, supra note 65, at 83, 97. 68 Landau, supra note 31, at 202–​03. 69 Octavio Luiz Motta Ferraz, Harming the Poor Through Social Rights Litigation:  Lessons from Brazil, 89 Tex. L. Rev. 1643, 1660–​61 (2011) (finding that healthcare litigation in Brazil mostly benefits the middle classes); Virgílio Afonso Da Siliva & Fernanda Vargas Terrazas, Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded, 36 Law & Social Inquiry 825 (2011); Florian F. Hoffman & Fernando R.N.M. Bentes, Accountability for Social and Economic Rights in Brazil, in Courting Social Justice, supra note 62, at 100; José Reinaldo de Lima Lopes, Brazilian Court and Social Rights: A Case Study Revisited in Courts and Social Transformation in New Democracies, supra note 65, at 185, 206. 70 Tatiana S. Andia & Everaldo Lamprea, Is the Judicialization of Healthcare Bad for Equity? A Scoping Review, 18 Int’l J. for Equity in Health 61 (2019). See ­chapter 7 for a more comprehensive discussion. 71 For a critique on case selection in comparative constitutional law, see Ran Hirschl, Comparative Matters:  The Renaissance of Comparative Constitutional Law 224–​81 (2014); Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am. J. Comp. L. 125 (2005).

Existing Evidence  69 countries with weak legal systems, weak courts, and sham constitutions are rarely analyzed in the literature. This sample selection bias has the potential to skew our impressions on rights’ effectiveness. A second concern is that, in many studies, the dependent variable is not whether constitutional rights bring about social change, but whether constitutional rights produce constitutional litigation. For example, for Epp, rights revolutions occur when rights are litigated and enforced by courts. Whether court decisions are actually implemented and actually alter government practices is not part of Epp’s analysis.72 The same is true for Boyd’s study on environmental rights. It is possible that, by using litigation as a dependent variable, these studies provide a more optimistic picture on rights’ impact than studies that focus on the impact on actual rights violations.73 Although judicial enforcement is surely an indication that constitutional rights are having some impact, there is no guarantee that the judicial enforcement of constitutional rights will actually change government practices. Gerard Rosenberg’s Hollow Hope, which has documented the inability of the U.S. Supreme Court to bring about social change, illustrates this point.74 Rosenberg’s classical study is not the only one in this tradition: many others have illustrated how implementing high-​profile rights decisions can be vexing.75 Recent work that has taken up this question in the context of social rights has shown that implementation may be dependent on things such as the complexity of the remedy, the visibility of nonimplementation, and the willingness of civil servants to cooperate.76 Regardless, the fact that courts are enforcing rights does not guarantee broader social change and improved rights practices.

72 Epp, supra note 47, at 7–​8 (noting that a rights revolution consists of “judicial attention to the new rights, judicial support for the new rights and implementation of the new rights” whereby implementation is “the extent to which courts have issued a continuing stream of judicial decisions that enforce or elaborate their earlier decisions”). 73 Indeed, the various studies on the impact of the Canadian Charter seem to divide along these lines. The studies that use litigation as their dependent variable are more optimistic than those that consider actual changes in society. Compare Songer et al., supra note 58, and Carlson, supra note 58, with Balkan, supra note 60, and Arthurs & Arnold, supra note 60. 74 Rosenberg, supra note 43. Notably, other studies have been much more optimistic about the ability of the U.S. Supreme Court to enforce rights. See, e.g., Jack Greenberg, Crusaders in the Courts:  How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994); Morton J. Horwitz, The Warren Court and the Pursuit of Justice (1998); Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 10–​11 (1994). 75 See, e.g., Donald Horowitz, The Courts and Social Policy (1977); Geoffrey C. Hazard, Social Justice Through Civil Justice, 36 U. Chi. L. Rev. 699, 712 (1968) (suggesting that the effect of courts in bringing about social change will be “diffuse, microcosmic and dull”). See also supra note 43. On the methodological difficulties of establishing the impact of court rulings, see Diana Kapiszewski & Matthew M. Taylor, Compliance with Judicial Rulings, 38 Law & Soc. Inquiry 803 (2013). 76 Langford et al., supra note 63, at 12–​13.

70  THEORY, BACKGROUND, AND METHODS

(2) Quantitative Studies Quantitative studies typically do not suffer from the same shortcomings. They typically analyze a broader range of countries, including those where rule of law is weak. They also usually try to explain their effects on human rights outcomes directly. But the existing quantitative studies have their own shortcomings. Surveying the literature in law, economics, political science, and sociology over the past four decades, we have identified about a dozen prior studies that have analyzed the effectiveness of constitutional rights.77 Most of these studies were performed over ten years ago, before the credibility revolution in the social sciences took place.78 As a result, many of these studies have limitations. First, most of the earlier studies were based on small samples, often only a limited cross-​section of countries.79 Second, almost all of these studies considered the effect of aggregate measures of government repression rather than specific indicators that capture the progress on specific rights.80 Third, most existing studies have made little effort to address the fact that constitutional rights are not randomly assigned, which poses a threat to valid causal inference. Indeed, several of the early studies in the literature merely presented bivariate correlations that do not include control variables.81

77 In chronological order, the following works have addressed the question with large-​N data: John Boli-​Bennett, The Expansion of National States, 1870–​1970 (1976) (unpublished Ph.D. dissertation, Stanford University) (on file with the Stanford Auxiliary Library); Kathleen Pritchard, Comparative Human Rights: An Integrative Explanation, 15 Pol’y Stud. J. 110 (1986); Christian A. Davenport, Constitutional Promises and Repressive Reality: A Cross-​National Time-​Series Investigation of Why Political and Civil Liberties Are Suppressed, 58 J. Pol. 627, 648 (1996); Cross, supra note 42; Linda Camp Keith, Constitutional Provisions for Individual Human Rights (1977–​1996):  Are They More than Mere “Window Dressing?,” 55 Pol. Res. Q. 111 (2002); Avi Ben-​Bassat & Momi Dahan, Social Rights in the Constitution and in Practice, 36 J. Comp. Econ. 103 (2008) [hereinafter Ben-​Bassat & Dahan, Social Rights]; Avi Ben-​Bassat & Momi Dahan, Constitutional Commitment to Social Security and Welfare Policy, 12 Rev. L. Econ. 165 (2016) [hereinafter Ben-​Bassat & Dahan, Social Security]; Jonathan Fox & Deborah Flores, Religions, Constitutions, and the State: A Cross-​National Study, 71 J. Pol. 1499 (2009); Keith et al., supra note 42; Linda Camp Keith, Political Repression: Courts and the Law (2011); James Melton, Do Constitutional Rights Matter? (Sept. 16, 2014), https://​ pdfs.semanticscholar.org/​e030/​faaef3401760e608dfb9faa13389bd41d377.pdf; Frank B.  Cross, Constitutions and Religious Freedom (2015); Christian Bjørnskov & Jacob Mchangama, Do Social Rights Affect Social Outcomes?, 63 Am. J. Pol. Sci. 452 (2019). This list does not include the handful of studies that look at the impact of social rights on indicators of social well-​being, which we will discuss later. We do not include these studies here because they do not directly capture whether social rights change government behavior. 78 Joshua D. Angrist & Jörn-​ Steffen Pischke, The Credibility Revolution in Empirical Economics: How Better Research Design Is Taking the Con out of Econometrics, J. Econ. Persp., Spring 2010, at 3. 79 E.g., Cross, supra note 42; Davenport, supra note 77; Pritchard, supra note 77. 80 E.g., Davenport, supra note 77; Keith, supra note 77; Keith et al., supra note 42; Pritchard, supra note 77. 81 See Boli-​Bennett, supra note 77; Pritchard, supra note 77.

Existing Evidence  71 Perhaps due to these shortcomings, quantitative studies have produced inconsistent results, and it is difficult to paint a consistent picture from the existing literature. Early cross-​sectional analysis by John Boli-​Bennett,82 Kathleen Pritchard,83 and Frank Cross84 found no effect of constitutional rights protections on actual rights practices, or found that they had a negative effect.85 A more recent cross-​sectional analysis on religious freedom by Frank Cross produced findings very similar to our own: a constitutional right to religious freedom promotes religious freedom de facto, while the presence of an official state religion has the opposite effect.86 Yet each of these studies was based on a cross-​section of countries, and did not explore the relationship between constitutional rights and actual rights practices over time, making it hard to have a great deal of confidence in their findings. Subsequent studies have explored the impact of constitutional rights over time, but only on broad indicators of repression that do not disaggregate different kinds of rights violations. Christian Davenport explored the impact of fourteen constitutional provisions (some related to rights, others related to limitations on rights and emergency clauses) on an aggregate indicator of repression in thirty-​nine countries over a thirty-​five-​year period. He found that the freedom of the press reduced government repression, but that protections of free speech, the right to unionize, or the right to strike were ineffective.87 Linda Camp Keith examined the impact of ten constitutional rights on an aggregate indicator of government repression for a global sample over a twenty-​year period and found a positive and statistically significant effect for fair and public trial provisions, but not for any of the other constitutional rights.88 Linda Camp Keith, Neil Tate, and Steven C. Poe examined the impact of ten constitutional rights provisions, along with judicial independence and emergency clauses on an aggregate measure of government repression, using a global sample of countries for a twenty-​one-​year period.89 They again found that fair and public trials have 82 Boli-​Bennett, supra note 77. 83 Pritchard, supra note 77, at 119–​20. 84 Cross, supra note 77, at 87. 85 Pritchard, for example, concludes that “greater acknowledgment of rights in constitutions was found to result in lower actual enjoyment of (those) rights.” See Pritchard, supra note 77, at 120. 86 Cross, supra note 77, at 158–​69. 87 Davenport, supra note 77, at 648. Note that Davenport coded the freedom of expression, the freedom of speech, and the freedom of the press as three separate provisions, and only found an effect of the press freedom. 88 Keith, supra note 77, at 128. 89 Keith et al., supra note 77. Noteworthy is that this study takes into account limitation clauses in coding the right. That is, if a right is protected, but limitations are specified in the constitution itself, then this is coded as a weaker protection than when no such limitations are specified. We do not follow this approach, since we believe that limitation clauses merely reflect a choice between specifying rights-​limitations ex ante versus delegating this power to the court and therefore do not necessarily reveal substantive differences in levels of protection.

72  THEORY, BACKGROUND, AND METHODS a statistically significant and negative effect on government repression, but found no effect of other rights such as the prohibition of torture, the right to strike, the freedom of press, and habeas provisions.90 Because each of these studies explores the impact of specific constitutional rights on broad indicators of repression, it is again hard to place too much weight on their findings. To our knowledge, only two quantitative studies explored the effect of constitutional rights provisions both across countries and over time and on disaggregated human rights indicators that directly capture the constitutional rights provisions in question. These two studies are most similar to our own, although the findings they produce are different. In a 2011 book, Linda Camp Keith explored the impact of a number of different constitutional rights provisions, and found an positive effect for the freedom of expression and some nonrobust evidence for the freedom of association and religion.91 In an unpublished manuscript, James Melton explored the impact of the constitutional protection of the freedom of association, the freedom of movement, the freedom of religion, the freedom of expression, and the freedom of the press. He found that none of these constitutional rights have a direct impact on actual human rights practices,92 but that they do make a difference when coupled with an independent judiciary.93 He further found that some rights—​the freedom of association, the freedom of religion, and the freedom of movement—​are effective in democracies only. While the impact of constitutional rights on measures of government repression has mostly been explored by political scientists, economists have taken some interest in social rights. A handful of studies have correlated social rights provisions with indicators on social well-​being. On education, Sebastian Edwards and Alvaro Marin found no impact of the constitutional right to education on test scores in a cross-​section of sixty-​one countries,94 while Jody Heymann, Amy Raub, and Adele Cassola found that the right to education is associated with higher net enrollment rates in primary and secondary schools.95 Avi Ben-​Bassat and Momi Dahan found that constitutionalizing the right to education produced

90 Id. at 653. They found some effect for the right to strike, but this finding is not robust. 91 Keith, supra note 77, at 292. 92 Melton, supra note 77, at 21. 93 Notably, Melton emphasizes that the “most crucial rights for designers to entrench” is the freedom of association, whose “effect is mostly felt in countries with high levels of judicial independ­ ence, but once this basic criterion is met, neither regime type nor political conflict seem to alter the effectiveness of this de jure freedom of association.” Id. at 26–​27. 94 Sebastian Edwards & Alvaro Garcia Marin, Constitutional Rights and Education:  An International Comparative Study, 43 J. Comp. Econ. 938, 948 (2015). 95 Jody Heymann, Amy Raub, & Adele Cassola, Constitutional Rights to Education and Their Relationship to National Policy and School Enrollment, 39 Int. J. Educ. Dev. 131 (2014).

Existing Evidence  73 lower levels of government spending on education.96 On healthcare, work by both Hiroaki Matsuura and Matthew Kavanagh found that constitutionalizing the right to healthcare in national constitutions is associated with reduced infant mortality rates. 97 On social security, Avi Ben-​Bassat and Momi Dahan found that, in two cross-​sectional studies covering 64 countries, constitutionalizing the right to social security is associated with higher transfer payments.98 Finally, Lanse Minkler and Nishith Prakash found that legally enforceable social rights reduce poverty in a cross-​section of 201 countries.99 There are limitations that make it difficult to draw strong conclusions from the existing studies on social rights effectiveness. One reason is that there is little agreement on the appropriate dependent variables.100 Many of these studies explore the impact on social rights on slow-​moving structural characteristics of a country—​such as poverty and child mortality—​during a short period. Notably, such characteristics take years (if not decades) to change, and are unlikely to be fully within a government’s control. As we explain more fully in c­ hapter 7, we believe that such structural indicators are not well suited to assess the impact of these rights. Another reason that makes it hard to put much stock in these findings is that most of the existing studies rely on cross-​sectional analysis and make limited attempts to identify a causal effect. Finally, many of the studies that do seek to identify a causal effect use legal origins as an instrumental variable for constitutional rights, which is problematic since legal origins have been shown to affect human rights outcomes as well as judicial enforcement directly, rather than merely through constitutional social rights.101 Overall, one of the overarching impressions of the quantitative literature is that it is not obvious that constitutional rights protections correlate with better

96 Ben-​Bassat & Dahan, Social Rights, supra note 77, at tbl. 9. 97 Hiroaki Matsuura, The Effect of a Constitutional Right to Health on Population Health in 157 Countries, 1970–​2007:  The Role of Democratic Governance (Harvard University Program on the Global Demography of Aging Working Paper, 2013), https://​cdn1.sph.harvard.edu/​wp-​content/​ uploads/​sites/​1288/​2013/​10/​PGDA_​WP_​106.pdf (presenting this finding based on a panel covering 157 countries from 1970 to 2007); Matthew M. Kavanagh, The Right to Health: Institutional Effects of Constitutional Provisions on Health Outcomes, 51 Stud. Comp. Int. Dev. 328, 344 (2016) (presenting this finding based on a panel covering 144 countries from 1970 to 2010). Hiroaki Matsuura also finds the same for state constitutions. See Hiroaki Matsuura, State Constitutional Commitment to Health and Health Care and Population Health Outcomes: Evidence from Historical US Data, 105 Am. J. Pub. Health e48 (2015). 98 See Ben-​Bassat & Dahan, Social Security, supra note 77, at tbl. 4; Ben-​Bassat & Dahan, Social Rights, supra note 77, at tbl. 8. 99 Lanse Minkler & Nishith Prakash, The Role of Constitutions on Poverty:  A Cross National Investigation, 45 J. Comp. Econ. 563 (2017). 100 For a discussion on social rights measurement, see Sakiko Fukuda-​Parr, Terra Lawson-​ Remer & Susan Randolph, Fulfilling Social and Economic Rights (2015). 101 For a discussion of the limits of using legal origins as an instrumental variable, see Samuel Bazzi & Michael A. Clemens, Blunt Instruments:  Avoiding Common Pitfalls in Identifying the Causes of Economic Growth, Am. Econ. J.: Macroecon., Apr. 2013, at 152.

74  THEORY, BACKGROUND, AND METHODS rights practices. Another impression from the literature is that many of the findings seem to depend on data and research design, and that different studies have produced very different, often contradictory findings.

D.  Research on the Effectiveness of Human Rights Treaties While we have relatively little knowledge on whether constitutional rights matter, there is a far more expansive body of literature that has taken up a related question: does the ratification of human rights treaties improve government respect for rights?102 Early quantitative studies in this literature primarily found that treaties had either no effect, or potentially even a negative effect, on human rights practices. For example, one of the first studies on the topic by Linda Camp Keith in 1999 looked at data from 178 countries from 1976 to 1993, and found that countries did not appear to improve along four measures of rights protection after ratifying the International Covenant on Civil and Political Rights (ICCPR).103 In 2002, Oona Hathaway published the results of a wide-​ranging data collection effort to study the effect of human rights treaties on a range of outcomes for 166 countries over a roughly forty-​year period.104 Hathaway’s conclusion was that there was “not a single treaty for which ratification seems to be reliably associated with better human rights practices and several for which it appears to be associated with worse practices.”105 Likewise, Emilie Hafner-​Burton and Kiyoteru Tsutsui empirically studied the effect of all six of the core human rights treaties and found that ratification was not associated with better rights practices. Instead “state ratification of all treaties has a negative effect on signatories’ behavior: treaty members are more likely to repress their citizens than nonratifiers.”106 More recently, in a 2012 book, Heather Smith-​Cannoy found that both the ICCPR and the Convention Against Torture and Other Cruel, Inhuman or

102 For more comprehensive reviews of this literature, see Kevin L. Cope & Cosette D. Creamer, Disaggregating the Human Rights Treaty Regime, 56 Va. J. Int’l L. 459 (2016); Emilie M. Hafner-​ Burton, A Social Science of Human Rights, 51 J. Peace Res. 273 (2014); Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 Am. J. Int’l L. 1, 19–​25 (2012); Beth A. Simmons, Treaty Compliance and Violation, 13 Ann. Rev. Pol. Sci. 273, 288–​92 (2010); Kevin Cope, Cossette Creamer & Mila Versteeg, Empirical Studies of Human Rights Law, 15 Annual Review of Law and Social Science 155 (2019). 103 Linda Camp Keith, The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior?, 36 J. Peace Res. 95 (1999). 104 Oona Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L.J. 1935 (2002). 105 Id. at 1940. 106 Emilie M. Hafner-​Burton & Kiyoteru Tsutsui, Human Rights in a Globalizing World:  The Paradox of Empty Promises, 110 Am. J. Soc. 1373 (2005).

Existing Evidence  75 Degrading Treatment or Punishment (CAT) are associated with worse rights performance.107 Other studies have found that human rights treaties have a positive effect—​ but only under certain conditions. While the studies that have searched for conditional effects have exploded in the last several years,108 two such conditions have been identified as critical in multiple studies: (1) regime type and (2) the presence of independent courts. First, a number of works have emphasized the importance of democratic regime types109 (although some more recent research has questioned its importance110). Most notably, in 2009 Beth Simmons published a major book that 107 Heather Smith-​Cannoy, Insincere Commitments:  Human Rights Treaties, Abusive States, and Citizen Activism (2012). We are only aware of a handful of recent large-​N studies that have found that ratifying human rights treaties are unconditionally associated with positive results, but qualifications are needed for both. First, Christopher Fariss has shown that a measure of latent repression he developed is positively correlated with the six major human rights treaties. Christopher J. Fariss, The Changing Standard of Accountability and the Positive Relationship Between Human Rights Treaty Ratification and Compliance, 48 Brit. J. Pol. Sci. 239 (2018). Fariss’s study does not use an identification strategy that tries to account for the endogenous relationship between treaty ratification and human rights outcomes, and his results are not always statistically significant. Second, Hill and Jones find that ratification of the CAT and ICCPR are positively associated with improvements with Fariss’s measure, but the effect they find is small, they do not use an identification strategy to isolate the effects of ratification, and they find that those treaties are negatively correlated with other measures of rights outcomes. Daniel W. Hill, Jr. & Zachary M. Jones, An Empirical Evaluation of Explanations for State Repression, 108 Am. Pol. Sci. Rev. 661 (2014). These findings thus do not necessarily suggest that human rights treaties have an unqualified positive effect. Instead, they may illustrate the limits of these agreements. Eric Posner has argued, for instance, that the many qualifications about these results illustrate the limitations of these agreements. Posner, supra note 38. 108 For example, Yonatan Lupu found that ratification of the ICCPR is associated with improved rights performance when there is greater presence of legislative veto players. Yonatan Lupu, Legislative Veto Players and the Effects of International Human Rights Agreements, 59 Am. J. Pol. Sci. 578 (2015). Similarly, Wade Cole found that the ICCPR is not associated with overall improvements in human rights, but did find evidence that it is associated with improvements in human rights in cases where states have high bureaucratic capacity. Wade Cole, Mind the Gap: State Capacity and the Implementation of Human Rights Treaties, 69 Int’l Org. 405 (2015). Mala Htun and Laurel Weldon found that ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) alone does not improve women’s rights, but that CEDAW ratification is associated with a small decrease in violence against women when combined the presence of strong, autonomous feminist movements. Mala Htun & S. Laurel Weldon, The Civic Origins of Progressive Policy Change: Combating Violence Against Women in Global Perspective, 1975–​2005, 106 Am. Pol. Sci. Rev. 548 (2012). Finally, Courtenay Conrad and Emily Ritter found that ratification of the CAT is associated with lower rates of repression in cases when the leader has strong tenure. Courtenay R. Conrad & Emily Hencken Ritter, Treaties, Tenure, and Torture: The Conflicting Domestic Effects of International Law, 75 J. Pol. 397 (2013). 109 See, e.g., Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights?, 49 J. Conflict Resol. 925, 926 (2005) (finding that “[i]‌n the absence of democracy and a strong civil society, treaty ratification has no effect and is possibly even associated with more human rights violations”); Jana von Stein, Making Promises, Keeping Promises: Democracy, Ratification and Compliance in International Human Rights Law, 46 Brit. J. Pol. Sci. 1 (2015) (finding that ratifying a treaty on the rights of children called the Minimum Age Convention is associated with lower levels of prohibited child labor for democracies and countries with strong institutions). 110 For instance, a 2019 paper by Daniel Hill and Ann Watson found no evidence that the effectiveness of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) depends on countries’ levels of democracy. See Daniel W. Hill & K. Anne Watson, Democracy and

76  THEORY, BACKGROUND, AND METHODS empirically explored the effects of thirteen human rights treaties.111 Simmons found that six agreements are associated with improved rights practices, while seven others are not. Simmons also found that the six agreements that improved rights only had an impact in countries that were neither fully democratic nor fully autocratic—​a group of countries Simmons refers to as “transitional democracies.” Simmons argued that rights make a difference in these countries because they can be leveraged by domestic activists pushing for change in their own countries. While Simmons’s theory is focused on the importance of democratic regime type, and how such regimes allow for domestic mobilization based on human rights law, she does make an observation that resembles our own theory, which is that some rights have natural constituencies to enforce them. Specifically, toward the end of her book, she observes: From a mobilization perspective, it is easy to understand why an international commitment on freedom of religious practice differs systematically from one on fair trials. The former has a built-​in pressure group—​organized religious minorities—​who are prepositioned to press governments for compliance. For a number of reasons, the mobilization mechanism is bound to be weaker in the case of fair trials. Most obviously, alleged criminals or other kinds of suspects typically are not well positioned to mobilize to demand better treatment by law enforcement authorities and the local court system.112

While this claim is not central to Simmons’s book, it is the closest statement to our own theory that we have found in the literature. To our knowledge, no other studies in this literature have focused on how different rights provide inherently different opportunities for mobilization, even though the literature has found that there are important differences between treaties.113 Second, several studies have found that independent domestic courts aid treaty enforcement. For example, Emilia Powell and Jeffrey Stanton found that countries with strong judiciaries are less likely to ratify the CAT, but less likely to

Compliance with Human Rights Treaties:  The Conditional Effectiveness of the Convention for the Elimination of All Forms of Discrimination against Women, 63 Int’l Stud. Q. 127 (2019). 111 Beth A.  Simmons, Mobilizing for Human Rights:  International Law in Domestic Politics (2009). 112 Id. at 380. 113 For instance, Daniel Hill found that the CAT and ICCPR are associated with worse human rights outcomes, but that the CEDAW is associated with better human rights outcomes. Daniel W. Hill, Estimating the Effects of Human Rights Treaties on State Behavior, 72 J. Pol. 1161 (2010). Similarly, Yonatan Lupu found null results for the CAT and ICCPR, but positive results for the CEDAW. Yonatan Lupu, The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects, 57 Am. J. Pol. Sci. 912 (2013).

Existing Evidence  77 torture if they do ratify the CAT.114 Yonatan Lupu likewise found that the presence of independent courts makes countries more likely to respect certain treaty rights, albeit only for those rights for which information on violations reaches the courts.115 While democracy and courts are not the only conditional effects that the human rights treaty literature has identified, these two have received the bulk of attention in the literature. Given the consensus in the human rights treaty literature that democracy and independent courts are important conditions for effectuating human rights treaties, we explore the conditional effects for these same mechanisms in our own empirical analysis on constitutional rights. Unlike the human rights treaty literature, however, we find no systematic evidence that democracy and independent courts improve respect for human rights.

114 Emilia Justyna Powell & Jeffrey K. Staton, Domestic Judicial Institutions and Human Rights Treaty Violation, 53 Int’l Stud. Q. 149 (2009). 115 Yonatan Lupu, Best Evidence:  The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements, 67 Int’l Org. 469 (2013).

4

The Rise of Rights Constitutionalism A.  Ecuador’s 10,000 Words on Rights On September 28, 2008, Ecuadorians overwhelmingly voted to adopt a new Constitution. The new document was drafted by a directly elected constituent assembly and resulted from a process that was characterized by widespread popular participation.1 The document’s extensive catalogue of rights is particularly noteworthy.2 Among other things, it protects the rights of lactating mothers,3 a right to locally produced nutritious food,4 and a right to access information technology.5 It also bestows rights directly upon Mother Nature (pacha mama) herself,6 making the Ecuadorian Constitution the first to allow claims to be brought on behalf of natural objects, like trees or rivers.7 Overall, the 2008 Constitution devotes no fewer than 73 articles and 10,417 words to constitutional rights. In comparison, the entire U.S. Constitution is 7,591 words long. Although Ecuador’s Constitution enumerates more rights than any other constitution currently in force, it is actually at the vanguard of a larger trend. While a handful of countries—​like the United States, Belgium, and Norway—​have had constitutions in place for over a century, most countries continually amend their constitutions and frequently overhaul them entirely.8 As part of this ongoing constitution-​making activity, there has been a remarkable proliferation of

1 See Stephan Küffner & Joshua Partlow, Voters in Ecuador Approve Constitution: New Document Would Enhance Presidential Powers, Allow Consecutive Terms, Wash. Post, Sept. 29, 2008, at A14; Carlo Ruiz Giraldo, Social Participation and Prior Consultation Rights in Ecuador:  An Unfinished Dream?, ConstitutionNet (Aug. 28, 2013), https://​www.constitutionnet.org/​news/​ social-​participation-​and-​prior-​consultation-​rights-​ecuador-​unfinished-​dream. 2 Rodrigo Uprimny, The Recent Transformation of Constitutional Law in Latin America Trends and Challenges, 89 Tex. L. Rev. 1587, 1591 (2011). 3 Constitución Política de la República del Ecuador, Oct. 20, 2008, art. 43. 4 Id. art. 13. 5 Id. arts. 16–​17. 6 Id. arts. 71–​74. 7 See, e.g., Wheeler c. Director de la Procuraduria General Del Estado de Loja, Juicio No. 11121-​ 2011-​0010 (2011) (Ecuador) (containing an opinion by the Attorney General of Loja, a province of Ecuador); see also Erin Daley, The Ecuadorian Exemplar: The First Ever Vindications of Constitutional Rights of Nature, 21 Rev. Eur. Community & Int’l Envtl. L. 63 (2012). 8 Zachary Elkins, Tom Ginsburg, & James Melton, The Endurance of National Constitutions 129 (2009); Mila Versteeg & Emily Zackin, American Constitutional Exceptionalism Revisited, 81 U. Chi. L. Rev. 1641, 1674–​77 (2014). How Constitutional Rights Matter. Adam Chilton & Mila Versteeg, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190871451.001.0001

80  THEORY, BACKGROUND, AND METHODS constitutional rights provisions over the past few decades.9 Many constitutions currently in force contain not only civil and political rights—​like property rights and freedom of religion—​but also a range of socioeconomic rights—​like the right to education and healthcare—​as well as environmental rights, consumer rights, and even rights for animals.10 The trend appears to be spurred by globalization, transnational actors that promote rights globally,11 and a growing involvement by the public in the drafting process.12 As a result of these and other forces, extensive rights catalogues have become the hallmark of twenty-​first-​ century constitutions. This chapter introduces the data we use to explore the impact of constitutional rights around the world: a dataset capturing the rights found in 194 countries’ “Large-​C” constitutions between 1946 and 2016 and an expert survey on the presence of rights in countries’ “small-​c” constitutions. We also use this data to chart the spread of constitutional rights around the world in the postwar period.

B.  Data on Constitutional Rights To capture the rights enshrined in national constitutions, we compiled a global database on constitutional rights provisions. Specifically, one of us (Mila) hand-​ coded all national constitutions that were in force in 1946 as well as all the subsequent amendments or wholesale replacements of those documents. For each document, she tracked over a hundred constitutional rights provisions and recorded when these provisions appeared in (and disappeared from) national constitutions. The first iteration of the dataset was collected in 2008–​2009 and covered the period 1946–​2006. The dataset was updated in 2017 to cover the

9 David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Cal. L. Rev. 1163, 1194–​97 (2011) (describing “rights creep”); see also Benedikt Goderis & Mila Versteeg, The Diffusion of Constitutional Rights, 39 Int’l Rev. L. & Econ. 1, 5 (2014). 10 David R. Boyd, The Environmental Rights Revolution:  A Global Study of Constitutions, Human Rights, and the Environment 45–​78 (2012); Courtney Jung, Evan Rosevear, & Ran Hirschl, Economic and Social Rights in National Constitutions, 62 Am. J. Comp. L. 1043, 1054 (2015); Law & Versteeg, supra note 9, at 1195–​96. 11 Law & Versteeg, supra note 9, at 1166; Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the “Rule of Law,” 101 Mich. L. Rev. 2275, 2276 (2003); Kevin L. Cope, The Intermestic Constitution: Lessons from the World’s Newest Nation, in The Social and Political Foundations of Constitutions 295, 304 (Denis Galligan & Mila Versteeg eds., 2013). 12 Kirsti Samuels, Post-​Conflict Peace-​Building and Constitution-​Making, 6 Chi. J. Int’l L. 663, 668 (2006) (finding, based on twelve case studies, that “more representative and more inclusive constitution building processes resulted in constitutions favoring free and fair elections, greater political equality, more social justice provisions, human rights protections, and stronger accountability mechanisms”); Tom Ginsburg, Zachary Elkins, & Justin Blount, Does the Process of Constitution-​Making Matter?, 5 Ann. Rev. L. & Soc. Sci. 201, 218 (2009) (finding empirically that constitutions produced through popular referendum “are more likely to have virtually every category of rights”).

The Rise of Rights Constitutionalism  81 period 2006–​2016. At this time, it was also cross-​checked against the timeline of the Comparative Constitutions Project, and a number of historical constitutions were added. The dataset now includes detailed information on a large number of rights from 1946 to 2016 for all 194 widely recognized countries in the international state system. We believe that ours is the most comprehensive dataset on constitutional rights compiled to date. An advantage of our dataset is that the coding was done by a single researcher with expertise in comparative constitutional law, which helps ensure consistency in the coding. We cross-​checked six of the rights against the coding of the same rights by the Comparative Constitutions Project Dataset, and we found an inter-​coder reliability of 99 percent. At the time of writing, the data has been used in over a dozen academic articles. The full dataset is available from our website, https://​www.constitutions.org. Compiling a global constitutional rights dataset involves making a number of methodological choices.13 The first choice is deciding what counts as a country’s constitution. Crucially, our focus is on the formal, written “Large-​C” constitution, and excludes the “small-​c” constitution that is comprised of conventions, judicial interpretations, and sources other than the constitutional text itself. To identify Large-​C constitutions, we included any document that a country designates as its “constitution.” We did so even when a document was enacted as ordinary legislation and even when the content of these documents did not track our conventional understanding of a constitution. Second, while most countries have a document that they call “constitution,” we included a handful of laws that are not explicitly labeled “constitution” but which govern functionally constitutional matters, such as separation of powers and rights. Examples include Israel’s Basic Laws, the United Kingdom’s 1998 Human Rights Act, and Canada’s 1960 Bill of Rights. However, statutes that serve to implement specific constitutional obligations (which are commonly enacted in many civil law countries) were not included. We documented suspensions of constitutions, but these were not treated as formal amendments to the text unless the suspension was pursuant to another constitutional document that thereby effectively replaced the prior constitution. The second choice is deciding which part of the constitution to code. To identify rights provisions, we analyzed the full constitutional text. While most rights provisions can be found in the bill of rights, they are sometimes found in other places. For example, some francophone African countries followed the example of the 1946 French Constitution and placed all their rights in the preamble.

13 This section draws on, and expands, a prior description of this dataset. See Law & Versteeg, supra note 9, at 1187–​90.

82  THEORY, BACKGROUND, AND METHODS Likewise, social welfare rights are sometimes placed in a section on government policies, while fair trial rights are at times found in a section on the judiciary. The exact placement of rights in a constitution does not affect our coding, yet we do code a number of separate variables that capture where certain rights are located in the document. A third set of choices relate to the coding of rights themselves. Specifically, we decided on the following guiding principles. First, and perhaps most importantly, we only coded explicit statements of rights. For example, if the constitution contains a clause that guarantees “due process” of law, we would not code that as a right to privacy, even though it could be interpreted as such by the courts. Second, we took each provision at face value, and did not interpret them in light of the text of the document as a whole. To illustrate, if a constitution prohibits torture, but there is a later provision that makes all rights subordinate to the common good, this later provision is not taken into account when coding the torture provision. Third, in coding rights, we did not take account of limitation clauses.14 The reason is that, from the text of a limitation clause alone, it is usually impossible to determine the extent to which rights can actually be limited.15 Fourth, we coded constitutional rights regardless of how they are framed. Rights can be cast as positive entitlements for citizens or prohibitions for the government. This framing often depends on the type of right in question. For example, negative liberty rights are often cast as prohibitions (“no one shall be tortured,” “no one shall be deprived of his liberty, except by law”), while fair trial rights are often cast as guarantees (“trials shall be held in public,” “everyone is guaranteed a defense”). And in both cases, these prohibitions or guarantees can also be explicitly phrased as rights (“everyone has a right not to be tortured,” or “everyone has the right to a public trial”). Our general approach was that, if the constitution offers protection, these protections are coded as rights. While this is not a particularly high threshold, certain provisions do not meet it. When the constitution merely states that certain rights may be regulated, this is not coded as a substantive protection. For example, “the law regulates inheritance” or “the press is regulated by law” does not constitute a right to inheritance or press freedom.16 Fifth, we only coded constitutional rights when they apply to all people. To illustrate,

14 A typical example is Section 1 of the Canadian Charter of Rights and Freedoms, which stipulates that the rights contained therein are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (Can.). 15 Notably, in some countries, limitation clauses are highly specific; in others they are very general; and in yet others, they are absent altogether and defined by the courts. This widespread variation makes it hard to assess how to evaluate the extent of limitations permitted. For a discussion, see David S. Law & Mila Versteeg, Sham Constitutions, 101 Cal. L. Rev. 863, 931–​34 (2013). 16 For social rights, we specifically coded whether the guarantees are framed as rights for citizens or as goals for the government.

The Rise of Rights Constitutionalism  83 60

90% 80%

50

70% 60%

40

Median

# of Rights 30

40% 30% 20%

0

10

20

10%

1946

1956

1966

1976

1986

1996

2006

2016

Year

Figure 4.1:  The Proliferation of Constitutional Rights, 1946–​2016

a right to housing for children is not coded as a right to housing (but it may be coded as the presence of children’s rights). Similarly, the right to schooling for indigenous groups is not coded as a general right to education, but rather as a minority group right.17

C.  The Proliferation of Constitutional Rights Using this data, Figure 4.1 documents the spread of rights from 1946 to 2016. It specifically uses the coding of eighty-​seven unique constitutional rights to report the number of rights found in the median constitution over time.18 It reveals a 17 As an additional rule, constitutional rights are only coded when they apply in all circumstances, and not only in some cases. As an example, a right to equality in voting is not coded as a general equality right. Similarly, gender equality during working hours is not coded as a general right to gender equality. There are two exceptions to this general rule. First, physical needs rights—​ education, housing, food, or healthcare—​are coded even when these only apply to the poor, weak, or needy people in society. The rationale is that all citizens are still entitled to these rights if they were to become poor or weak. Second, education rights are coded even when they only apply to children. 18 This list of eighty-​seven rights was first introduced by Goderis & Versteeg, supra note 9. These are all the rights in the dataset that are unique rights. For example, the list of eighty-​seven rights

84  THEORY, BACKGROUND, AND METHODS

1st Quartile (