Civil and Political Rights

This chapter analyzes three civil and political rights that are practiced on an individual basis: (1) free speech, (2) the prohibition of torture, and (3) the freedom of movement. The chapter first describes the doctrinal aspects of these rights, as well as how these relate to organizations’ ability to secure their enforcement. It then presents results from a global statistical analysis, which reveal that constitutionalizing these rights is not associated with better rights practices. In addition to presenting global data, this chapter present the results from a case study on free speech in Poland, which documents how the newly elected right-wing Law and Justice Party was able to take control of the country’s public media, even though both free speech and the independence of public media were guaranteed in the constitution.

Right to Unionize

This chapter analyzes the right to unionize. It first describes the doctrinal aspects of this right, and how it is organizational in nature. It also theorizes why unions are well equipped to protect the right to unionize and other workers’ rights, and why the constitution can help them do so. It then presents results from a global statistical analysis, which reveal that constitutional protections of the right to unionize are systematically associated with higher levels of respect for the right to unionize practice. It attributes this finding to the actions by trade unions, which use the constitution to protect their rights. This chapter also presents findings from a case study on the right to unionize in Tunisia, which illustrates how trade unions strategically used the Tunisian Constitution to protect their rights.

Freedom of Religion

This chapter analyzes the freedom of religion. It first describes the doctrinal aspects of religious freedom, and how it is organizational in nature. It also theorizes why religious groups are particularly well equipped to protect religious freedom, and how the constitution can help them to protect their rights. It then presents results from a global statistical analysis, which reveal that constitutional protections of religious freedom are systematically associated with higher levels of respect for religious freedom in practice. It attributes this finding to the organizational character of religious rights. Religious groups have tremendous capacity to protect their own rights in the face of transgressions of power, especially when they can rely on the constitution. This chapter further illustrates how this can play out with a case study on religious rights in Russia, which tells the story of how religious groups have used the Russian Constitution to mitigate the worst consequences of proposed constitutional violations. Finally, this chapter draws attention to the differences between majority and minority religions.

Popular Support for Constitutional Rights Violations

This chapter presents findings from two survey experiments that explore popular support for individual rights: one focused on free speech in Turkey and one focused on torture in the United States. For both countries, we designed a survey experiment to gauge whether people’s support for a policy changes when they are informed that this policy violates the constitution, and whether people are willing to mobilize to protect their constitutional rights in the face of violations. The goal of the survey experiments was to explore the mechanisms through which rights mobilization can occur and, specifically, whether constitutional violations change people’s positions or motivate them to take action. Both experiments found that being informed that a certain policy violates the constitution does not change popular opinion, which might be one of the reasons why constitutional rights are hard to enforce in the absence of formal organizations.

The Rise of Rights Constitutionalism

This chapter introduces the primary data we use to explore the impact of constitutional rights around the world: a dataset capturing the rights found in 194 countries’ written, or “Large-C,” constitutions from 1946 to 2016. It further provides summary statistics that reveal how constitutional rights have spread across the world. The chapter also introduces a novel dataset based on a global expert survey intended to capture constitutional protections beyond the Large-C constitutional text alone, that is, in countries’ “small-c” constitutions.

Introduction

This chapter introduces our main research question: do constitutional rights make a difference? For instance, if a country constitutionalizes free speech, does that improve respect for free speech in practice? It also describes the research methods we use to answer this question and previews our core findings: five rights that are practiced on an individual basis—the right to free speech, the prohibition of torture, the freedom of movement, the right to education, and the right to healthcare—are not associated with better rights practices, while three rights that are practiced by and within organizations (“organizational rights”)—the freedom of religion, the right to unionize, and the right to form political parties—are associated with higher levels of respect for those rights in practice. The chapter further provides a summary of our core theoretical explanation for these findings: to enforce constitutional rights, rights violations need to be politically costly, and formal organizations are better equipped to impose such costs than unorganized citizens.

Research Methods

This chapter describes the methodological challenges involved in answering the question whether constitutional rights matter. While there is no easy way to overcome these challenges, the approach of this book is to use a range of methods to study this topic. This book’s primary method is large-N statistical analysis. But because no single quantitative research design is likely to isolate the causal effects of constitutional rights, it supplements large-N analysis with case studies and survey experiments. By using a range of methods, we can triangulate onto a more accurate understanding of the effect of constitutional rights than any single method could provide. This chapter also reflects upon the challenges involved in measuring human rights violations and describes the data we use to capture rights violations.

Right to Form Political Parties

This chapter analyzes the right to form political parties. It first describes the doctrinal aspects of this right, and how it is organizational in nature. It also theorizes the extent to which political parties are able to mobilize to protect their rights, and whether and how the constitution can help them do so. The chapter also draws attention to important differences between opposition parties and ruling parties. It then presents results from a global statistical analysis, which reveal that constitutional protections of the right to form political parties are systematically associated with higher levels of respect for party rights and levels of democratization. It attributes this finding to the actions by political parties, which use the constitution to protect their rights. It also presents findings from a case study in Myanmar, which demonstrates how the constitutional protection of political parties facilitated the emergence of dozens of new parties and how the new parties used the Myanmar Constitution to protect their interests.

Existing Evidence

This chapter reviews the existing body of evidence on constitutional rights effectiveness. Although the debate over whether constitutional rights change government behavior extends back at least to Thomas Jefferson and James Madison, there is remarkably little empirical research that focuses specifically on this question. However, there are several academic literatures that are relevant to the topic. Because most legal scholars operate under the assumption that rights matter, it begins by very briefly reviewing some of the normative arguments for including rights. It then proceeds to discuss existing qualitative and quantitative studies on rights effectiveness. Finally, it discusses some of the core findings from a related literature on human rights treaty effectiveness.

Conclusion

This chapter concludes by reflecting on the questions this book has left unanswered and by pointing at avenues for future research. It begins by discussing research showing that constitutional design choices of American Indian Tribal Constitutions have had profound impact on long-term economic outcomes. Specifically, tribes that adopted constitutions that provided for the indirect elections of executives have higher income per capita and greater participation in the labor force decades later. This suggests that constitutions can matter. So although our research has found that the adoption of constitutional rights may have limited impact on the protection of rights, future research should look for the effects of constitutional design choices in other ways. This chapter also highlights some more specific lessons for human rights advocacy that flow from our case studies.