Mila Versteeg—Do Constitutional Rights Make A Difference?

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Mark Edwards or Dan Gingerich
September 18, 2018
Gibson 296

Mila Versteeg, from the University of Virginia School of Law

Adam Chilton & Mila Versteeg

Among the biggest decisions that constitution-drafters throughout history have faced is what rights to recognize. Should the constitution protect freedom of religion? Prohibit torture? Formally recognize gender equality? Guarantee access to a basic education? These questions were debated by drafters in eighteenth-century Philadelphia, in twenty-first century Katmandu, and hundreds of times in between. Yet despite expansive global efforts to draft bills of rights and the widespread belief that those rights “matter,” no one really knows with certainty if constitutionalizing legal barriers by committing them to paper affects whether people actually enjoy them.

In this project, we attempt to answer this question using a range of methods. First, we use global statistical analysis. Drawing on constitutional rights data for 194 countries over almost four decades, we conduct statistical analysis to track whether constitutionalizing a right was associated with improved rights practices. Second, to better understand the mechanisms through which rights make a difference, we conducted five illustrative or “mini” case studies in Russia, Myanmar, Poland, Colombia and Tunisia. Third, to understand how the public at large responds to constitutional rights violations, we conducted survey experiments in Turkey and the United States. Finally, we conducted an expert survey.

Our core findings are at once reassuring and troubling. The good news is that some types of rights do seem to shift government behavior somewhat, leading to better rights protections: these are the right to unionize, the right to form political parties, and the freedom of religion. On the other hand, and more troubling, other rights do not appear to cause improved rights protection. These include the prohibition of torture, the freedom of expression, the freedom of movement, the right to education, and the right to healthcare.

We believe that feature that best distinguishes rights that matter from those that don’t is whether they are practiced through formal organizations. What separates the right to unionize, the right to form political parties, and the freedom of religion is the existence of dedicated organizations: trade unions, political parties, and religious groups. Such organizations, armed with the constitution, can pressure governments to respect their constitutional commitments, especially when they pursue a range of strategies, such as lobbying, political mobilization, and litigation. We find that these enforcement actions prove most effective at turning written rights into meaningful legal barriers to government repression.

Mila Versteeg
Class of 1941 Research Professor of Law
University of Virginia School of Law
Fellow, Andrew Carnegie Foundation of New York, 2017-2019