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, ). 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.…”

The Inefficacy of Constitutional Torture Prohibitions

“…Indeed, despite the earlier interpretations by the Bush Administration, President Obama has now accepted that waterboarding indeed is torture and therefore illegal. Finally, holding all countries to the same standard of human rights has been universally adopted by the empirical human rights literature (Hathaway 2002;Simmons 2009;Hill 2010;Lupu 2013a;Lupu 2013b), and the very limited literature that has empirically tested the effectiveness of constitutional rights (Melton 2013;Chilton and Versteeg 2014). Thus, we work from the assumption that constitutional prohibitions of torture set the same standard everywhere.…”

“…12 Using standard regression techniques, Lupu then attempts to estimate the decision to ratify a specific treaty on human rights practices. 13 Although Lupu's method was developed to test whether treaty commitments improved the protection of rights, Chilton and Versteeg (2014) have argued that is also a promising method to test the effectiveness of constitutional rights. Instead of considering state's decisions to ratify treaties as a proxy for their affinity for rights, Chilton and 11 Although this paper does not have the space to fully explain this method, Lupu (2013a) provides a longer explanation for the method, as well as a long justification for its use.…”

“…In the first stage, we begin by estimating every country's constitutional ideal point for every year between 1946 and 2012. Following Chilton and Versteeg (2014), we perform ideal point estimation for a set of 87 rights, 14 estimating a two-dimensional model using the W-NOMINATE algorithm for the R programming language (Poole et al 2011). This analysis yields annual constitutional ideal points along two dimensions for 186 countries for every year between 1946 to 2012.…”

“…Specifically, we use data on rights included in every constitution between 1946 and 2012 to calculate countries' yearly constitutional "ideal points", and then match both on the probability of a country's constitutionally prohibiting torture and on a set of standard observables (Lupu 2013a;Lupu 2013b;Chilton and Versteeg 2014). Using this data and method, we find no evidence that constitutional torture prohibitions reduce the prevalence of torture.…”