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It has become almost universal practice for countries to adopt formal constitutions. Little is known empirically, however, about the evolution of this practice on a global scale. Are constitutions unique and defining statements of national aspiration and identity? Or are they standardized documents that vary only at the margins, in predictable and patterned ways? Are constitutions becoming increasingly similar or dissimilar over time, or is there no discernible overall pattern to their development? Until very recently, scholars have lacked even basic empirical data on the content of the world's

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An On December 17, 2010, a young Tunisian street vendor protesting an abusive police o cial set o a wave of democratic uprisings throughout the Arab world. In rising up against their governments, the peoples of the Arab countries were confronting an age-old problem in political theory: When is it acceptable to rise up against an unjust authority?is question is not only of great importance to the peoples of the Middle East today but was also of profound interest to the American founders and, through them, has informed the very basis of modern constitutionalism. It is perhaps unsurprising then that many countries' constitutions allow the people to challenge or overthrow their governments under certain circumstances. But to date, little systematic and empirical analysis has been done on the prevalence of this so-called right to resist in national constitutions or on what motivates constitutionmakers to adopt such a right.is Article takes up the task. It presents an original dataset on right-to-resist provisions in all national constitutions written since 1781, tracing such provisions' historical trajectory and demonstrating how they have proliferated in recent decades.e Article moreover provides the rst-ever empirical exploration of why it is, exactly, that constitutionmakers give their people a constitutional mandate to overthrow or contradict their governing authorities-likely those very authorities elsewhere empowered by the same constitution. Drawing on a range of real-world examples as well as regression analysis, we show that right-to-resist provisions are most likely to be rst established following a disruption of the previous constitutional order, either through popular democratic transition or through a violent political break such as coup d' état. ese ndings suggest that the constitutional right to resist serves a dual function, depending on its context. On the one hand, the constitutional right to resist can represent a fundamentally democratic and forward-looking tool that constrains future government abuse, empowers the national citizenry, and acts as an insurance policy against undemocratic backsliding. On the other hand, the right can serve as a backward-looking justi cation for coupmakers who seek retroactive legitimacy for whatever political crimes placed them in a position to make a new constitution in the rst place. Which of these two functions prevails may be in large part regionally determined. Latin American constitutionmakers primarily adopted the right to resist in the aftermath of coups d' état, while in other parts of the world the right to resist UCLA LAW REVIEW 60 UCLA L. REV. 1184REV. (2013 functions as a precommitment device against undemocratic backsliding.Our ndings have signi cant implications for our broader understanding of constitutionalism. Ostensibly, at the heart of any constitution lies a wish to bind the future on behalf of the present. Yet our ndings suggest that, at least in some cases, constitutional provisions may also serve the function of reinterpreting and j...

Although the question of whether constitutional rights matter is of great theoretical and practical importance, we know little about whether any constitutional rights actually improve rights in practice. We test the effectiveness of six political rights. We hypothesize that "organizational" rights increase de facto rights protection, because they create organizations with the incentives and means to protect the underlying right. By contrast, individual rights are unlikely to make a difference. To test our theory, we use a recently developed identification strategy that mitigates selection bias by incorporating previously unobserved information on countries' preferences for constitutional rights into the research design. Specifically, we use data on constitutional rights adoption since 1946 to calculate countries' yearly constitutional ideal point, and then match on the probability that a country will protect a specific right in its constitution. Our results suggest that only organizational rights are associated with increased de facto rights protection. We thank Kevin Cope, Zachary Elkins, Tom Ginsburg, Jake Gersen, Jeff Lax, Eric Posner, Emilia Justyna Powell, Fred Schauer, Beth Simmons, and Adrian Vermeule for helpful comments on an earlier version of this paper. Special thanks to Yonathan Lupu for sharing code and for many helpful suggestions on the implementation of our identification strategy. We thank Sean Roberts for excellent research assistance. Keywords

T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.

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Emergency governance, we are often told, is executive governance. Only the executive has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints. This article interrogates these propositions using evidence from how countries responded to the 2020 global pandemic during the critical first few months. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. This article finds that, contrary to the conventional wisdom, courts, legislatures, and subnational governments have played important roles in constraining national executives. Courts have insisted on procedural integrity of invocations of emergency, engaged in substantive review of rights restrictions, and in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have played a role in providing oversight and, in many cases, in producing new legislation that responds to the current crisis. Subnational governments, too, have pushed back against central authorities, engaging in valuable checks and balances that shaped the response. Taken together, these findings suggest that, during COVID, emergency governance has been closer to the Madisonian ideal of strong checks and balances than to Schmittian accounts of an unbound executive. This article considers the implications of these findings for theories of emergency governance, arguing that the conventional theories are based on one particular type of crisis—a national security crisis—and therefore their insights may be ill-suited to other kinds of emergencies, such as a pandemic.