How Constitutional Rights Matter
National constitutions lay out the fundamental principles by which countries are governed. But
despite their important, until recently, there has been limited data on the contents of these
documents, and scant empirical research on the effects of the provisions included in constitutions
on outcomes like economic growth or the protection of human rights. We are law professors that
have been conducting an ongoing comparative law research project to collect data on national
constitutions, explain why countries adopt different constitutional provisions, and then test the
effects of those provisions. On this website, you can learn more about our research, download
our data, and find information on our book How Constitutional Rights Matter.
Authors
Mila Versteeg
Mila Versteeg is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law at the University of Virginia School of Law and a Senior Fellow at the Miller Center. In 2017, she was named an Andrew Carnegie Fellow to conduct research on constitutional rights effectiveness. Her primary research interests include comparative constitutional law, international human rights law and empirical legal studies.
Her work has appeared in leading law and social science journals, including the Harvard Law Review, the Columbia Law Review, the University of Chicago Law Review, the NYU Law Review, the American Journal of International Law, the American Journal of Political Science, the American Political Science Review, the Journal of Legal Studies, the Journal of Law and Economics, and the Journal of Law, Economics, and Organization. Her work has been translated into Spanish, Portuguese, Turkish and Chinese.
Adam Chilton
Adam Chilton is a Professor of Law and Walter Mander Research Scholar at the University of Chicago School of Law. His research interests lie at the intersection of international law, comparative law, and empirical legal studies. His work has appeared in leading law and social science journals, including the American Journal of Political Science, American Law and Economic Review, Journal of Legal Studies, Journal of Law and Economics, and the Journal of Law, Economics, and Organization. You can read more about Adam here.
How constitutional rights matter
Does putting a right in a constitution cause governments to actually respect it in practice? Drawing on a wide variety of methods—including survey experiments, statistical analyses, and case studies from around the world—this book explains that whether constitutional rights matter depends on the type of right.
For constitutional rights to be respected, citizens must be able to punish their government for violations. Orchestrating the kind of collective actions needed to punish governments is difficult for citizens hoping to protect individual rights, like the freedom of speech and the prohibition of torture, because the costs of activism are often not worth it for any one person. And given that individual rights often lack natural constituencies that can collectively organize to overcome this problem, governments may be able to violate these rights with impunity.
But some rights have built-in constituencies able to mobilize for their protection. These constituencies exists for rights practiced by organizations, like religious groups, trade unions, and political parties. When these groups are protected by the constitution, they can use it as a tool in their legal and political advocacy. As a result, organizational constitutional rights are systematically associated with better respect for those rights.
However, even highly organized groups armed with the constitution cannot always stop repressive governments bent on violating rights. But when groups take advantage of their organizational infrastructure to use the constitution strategically they can often slow or halt repression, even in authoritarian settings.
Praise for How Constitutional Rights Matter
Research
Here is a selection of our research on constitutions and constitutional rights. A full list of our publications can be found on our websites at the University of Virginia and University of Chicago.
The Impact of Constitutions and Constitutional Rights
- Mila Versteeg, “Can Rights Combat Economic Inequality?” 133 Harvard Law Review 2017 (2020). Available here.
- Mila Versteeg, Tim Horley, Anne Meng, Mauricio Guim & Marilyn Guirguis “The Law and Politics of Presidential Term Limit Evasion” 120 Columbia Law Review 173 (2020). Available here.
- Tom Ginsburg & Mila Versteeg, “From Catalonia to California: Secession in Constitutional Law” 70 Alabama Law Review 923 (2019). Available here.
- Adam Chilton & Mila Versteeg, “Rights without Resources: The Impact of Constitutional Social Rights on Social Spending” 60 Journal of Law and Economics 713 (2017). Available here.
- Adam Chilton & Mila Versteeg, “Do Constitutional Rights Make a Difference?” 60 American Journal of Political Science 575 (2016). Available here.
- Adam Chilton & Mila Versteeg, “The Failure of Constitutional Torture Prohibitions” 44 J. Legal Stud. 417 (2016). Available here.
- Mila Versteeg, “The Politics of Takings Clauses,” 109 Nw. U. L. Rev. 695 (2015). Available here.
- David S. Law & Mila Versteeg, “Sham Constitutions” 101 Cal. L. Rev. 863 (2013). Available here.
- Benedikt Goderis & Mila Versteeg, “Human Rights Violations After 9/11 and the Role of Constitutional Constraints” 41 J. Legal Stud. 131 (2012). Available here.
Explaining Constitutional Rights and Other Constitutional Design Features
- Adam S. Chilton & Mila Versteeg, “Small-c Constitutional Rights” Working Paper (2019). Available here.
- Adam Chilton & Eric Posner, “Country Specific Investments and the Rights of Non-Citizens” 57 Virginia Journal of International Law 575 (2018). Available here.
- Eyal Benvenisti & Mila Versteeg, “The External Dimensions of Constitutions” 57 Virginia Journal of International Law 517 (2018). Available here.
- Lucas Kowalczyk & Mila Versteeg, “The Political Economy of the Constitutional Right to Asylum” 102 Cornell Law Review 1291 (2017). Available here.
- Mila Versteeg & Emily Zackin, “Constitutions Un-Entrenched: Toward an Alternative Theory of Constitutional Design” 110 American Political Science Review 657 (2016). Available here.
- Mila Versteeg, “Law versus Norms: The Impact of International Human Rights Treaties on Constitutional Rights,” 171 J. Institutional & Theoretical Econ. 87 (2015). Available here.
- Benedikt Goderis & Mila Versteeg, “The Diffusion of Constitutional Rights” 39 Int’l Rev. L. & Econ. 1 (2014). Available here.
- Tom Ginsburg, Daniel Lansberg-Rodriguez & Mila Versteeg, “When to Overthrow Your Government: The Right to Resist in the World’s Constitutions” 60 UCLA L. Rev. 1184 (2013). Available here.
- David S. Law & Mila Versteeg, “The Evolution and Ideology of Global Constitutionalism” 99 Cal. L. Rev. 1163 (2011). Available here.
Constitutions and Public Opinion
- Adam Chilton, Kevin Cope, Charles Crabtree, & Mila Versteeg, “Support for Restricting Liberty for Safety: Evidence During the COVID-19 Pandemic from the United States, Japan, and Israel” Working Paper (2020). Available here.
- Tom Ginsburg, Aziz Huq & Mila Versteeg, “The Coming Demise of Liberal Constitutionalism?” 85 University of Chicago Law Review 239 (2018) Available here.
- Adam Chilton & Mila Versteeg, “International Law, Constitutional Law, and Public Support for Torture: Evidence from a Survey Experiment” Res. & Pol 1 (2016). Available here.
- Nicholas O. Stephanopoulos & Mila Versteeg, “The Contours of Constitutional Approval” 94 Wash. U. L. Rev. 113 (2016). Available here.
- Mila Versteeg, “Unpopular Constitutionalism,” 89 Ind. L.J. 1133 (2014). Available here.
Constitutional Courts
- Adam Chilton & Mila Versteeg, “Courts’ Limited Ability to Protect Constitutional Rights” 85 University of Chicago Law Review 293 (2018). Available here.
- Tom Ginsburg & Mila Versteeg, “Why Do Countries Adopt Constitutional Review?” 30 J.L. Econ. & Org. 587 (2014). Available here.
The U.S. Constitution in Comparative Perspective
Small-C Constitutions
Countries’ formal, written constitutions—the “Large-C” constitution—typically list of a large number of rights that the government must respect. But rights included in these formal documents are often not the only rights that may be given constitutional protection. Instead, there is often a broader body of constitutional law derived from sources like judicial decisions, treaties, and conventions—the “small-c” constitution—that also provides protection for rights.
However, it is often difficult to establish which legal materials are definitively part of a country’s small-c constitution, and as a result, which rights are protected by this broader body of constitutional law. To investigate the nature and relative importance of small-c constitutions, we fielded a global expert survey on the nature of constitutional rights protection to 188 experts from 103 countries. The following are the experts that participated in our survey on small-c constitutions.