Do Constitutional Rights Make a Difference?

Abstract

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

Competition and Complementarity between Global and Regional Human Rights Institutions

“…Research has revealed no correlation between the incorporation of civil liberties in a constitution and actual rights observance (Chilton and Versteeg, 2015). The research on the effect of ratifying the global conventions is mixed but affirms that enforcement and interpretation are variable around the world (e.g.…”

Post-socialist “illiberal democracies”: do de jure constitutional rights matter?

“…Self-enforcement mechanisms create a positive interrelationship between de jure and de facto constitutional rules (Melton 2013). This is, in particular, the case when rights involve setting up organizations, which have the incentives and adequate means to guard and protect them (Chilton and Versteeg 2016). The latter authors provide evidence that such "organizational rights" are indeed associated with increased de facto rights protection (as opposed to "individual rights" which do not have this feature of self-enforcement).…”

“…Melton (2013) suggests, for example, that while entrenching freedom of religion, freedom of the press, and the prohibition of torture in the constitution does not improve the likelihood of observing that right/freedom in practice (in fact, in certain situations, entrenchment might increase the violation of these rights/freedoms), constitutional entrenchment does significantly improve de facto protection of freedom of association, freedom of expression, and freedom of movement (under a variety of conditions, the most important of which is the functioning of an independent judiciary). Most recently, Chilton and Versteeg (2016) suggest that the effectiveness of de jure political rights depends on the type of rights in question: rights that establish organizations with the incentives and means to protect them (called "organizational rights", e.g. the right to establish a political party or to unionize) are self-enforcing and therefore more effective than rights that do not establish such organizations ("individual rights", e.g.…”

De Jure/De Facto Institutions

“…A second area of law and economics research, where the focus has been on the de jure/de facto distinction, concerns protection of rights. Some studies have focused on explaining the determinants and/or effects of the de jure de facto gap for various categories of constitutional rights and freedoms (e.g., Law and Versteeg 2013), while others concentrated on disentangling the relationships between de jure and de facto rights (e.g., Melton 2013;Chilton and Versteeg 2016). Other types of rights analyzed from the de jure/de facto perspective are property (land) rights and the related problem of natural resource management (Robbins 2000;Alston and Mueller 2007;Alston et al 2012;Bellemare 2013).…”