How Constitutional Rights Matter: Thoughts on the New Gold Standard in Empirical Constitutional Studies

Professors Adam Chilton and Mila Versteeg’s How Constitutional Rights Matter is simply a game changer.

Taken as a whole, this book sets an astounding new benchmark in the empirical examination of what is arguably post–World War II constitutional theory’s most widely held convention: constitutional rights matter. Wide-ranging, carefully thought out, and meticulously researched, it is the best illustration currently on offer of what one of us termed a few years ago “comparative constitutional studies.” At the same time an inspiring agenda-setter and a conclusive agenda-closer, it is a genuine scholarly gem that every aspiring student of law and politics should read and reference in her future work.

As the book’s title indicates, Chilton and Versteeg set out to examine the real or de facto effect of constitutional rights. In so doing, they engage with a line of inquiry that dates back to the mid-1970s, at least in the U.S. context. The scholarly highlights in this area include Donald Horowitz’s early work on due process rights, Gerald Rosenberg’s The Hollow Hope (1991), and Charles Epp’s The Rights Revolution (1998), and in the European context, Geoffrey Garrett, R. Daniel Keleman, and Heiner Schulz’s research (1998) on varied implementation of ECJ rulings, and Lisa Conant’s Justice Contained: Law and Politics in the European Union (2002). Regardless of their substantial contributions, none of these works can lay claim to being even nearly as detailed, comprehensive, and well-researched as Chilton and Versteeg’s book.

The book’s richness is such that it may not be plausibly captured in a single commentary. The array of examples, data, methods, and arguments the authors deploy and consider in the book is vast—at times bordering on dizzying. But in a nutshell, Chilton and Versteeg’s argument is straightforward: Some constitutional rights are harder to violate than others. Specifically, what the authors term “organizational rights”—rights with associated organized civil society groups such as the right to unionize, to form political parties, to belong to a religious group—are harder to violate and thus are more effective in accomplishing their stated goal than other types of rights, notably what the authors term “individual rights.” That main claim is accompanied by a few theoretical and practical qualifications the authors raise. Chief among those are: constitutionalized rights alone do little to impede governments from violating these rights; rights enshrined in a constitution are more effective when buttressed with organized resistance by citizens/organizations, and yet these actions are often only able to slow violations but not to stop them when governments are determined; the main finding may not hold true in the future (i.e., globalization and spread of social media may change the power dynamics underlying this book’s findings); organizations and organizational rights are not limited to the examples studied in this book; and perhaps most importantly, the distinction between individual and organizational rights is not always clear.

With the core argument—the advantage of organizational rights over individual rights—the authors assume that when upholding a right is contrary to a government’s interest, the government will not uphold that right unless there are sufficient political costs for failing to doing so. They identify two main problems for citizens trying to raise or impose these political costs: the “coordination problem,” where citizens may struggle to agree when rights have been violated; and the “collective action problem,” where defying the government comes with individual costs, where non-participants can still reap the benefits, and where it is difficult for a citizen to be assured that they will be joined by the multitude needed to be successful. Chilton and Versteeg then argue that established organizational apparatuses that stand behind “organizational rights” help to overcome these problems, due to their effective mobilization capacity and inherent self-interest in fighting for certain rights, and also because of a virtuous cycle where organizations that are successful in defending rights are likely to receive greater support and investment. Taken as a whole, these features constitute the edge that organizational rights hold over individual rights.

A major achievement of this book is its deployment of a multi-method research design that is the most complete yet attempted in comparative constitutional studies. Chilton and Versteeg draw on a comprehensive statistical overview of eight rights in 194 countries over 70 years; five “mini” case studies; two large public surveys, and a survey of nearly 200 experts from over 100 countries. Additionally, most chapters feature anecdotal evidence and timely “vignettes” of constitutional rights in action. Even from a purely methodological standpoint, and regardless of the book’s substantive insights, such comprehensive, versatile, and well-thought-out utilization of a multi-method approach marks the coming of age of a genuinely comparative, interdisciplinary, evidence-based inquiry into the study of elements of the constitutional universe over time and place.

Over the last two decades, empirical constitutional scholars, many of whom are among the participants of this symposium, have done an excellent job putting some of modern constitutional theory’s main insights to the test. Several of us have even written influential treatises on a need to move toward comparative constitutional studies, and the need to combine insights, methods and research designs from the social sciences in the study of constitutional texts, constitutional origins and constitutional institutions. In some academic quarters—mainly in top U.S. law schools—that approach has taken root alongside more doctrinal approaches to the study on the constitutional universe. In other settings (e.g., continental Europe), constitutional scholarship remains largely doctrinal in nature or leaning heavily towards philosophy, with little or no engagement with pertinent social science methods or insights. 

In a collection of essays published a few years ago on the practice and theory of comparative public law, representatives of two different generations of constitutional scholars express concerns with the lack of empirical support to some of the common insights of (comparative) constitutional law. In it, Anne Meuwese and Mila Versteeg suggest that:

[T]he field of comparative constitutional law is permeated with causal claims, including, inter alia, the following notions: constitutions constrain government; judicial review protects human rights; socio-economic rights are unenforceable; and constitutional law is converging upon a global paradigm. These claims, which often take the form of unarticulated assumptions, are essentially empirical claims that have largely gone untested.

Along similar lines, Frederick Schauer, one of the United States’s most prominent constitutional thinkers, suggests that the intuitions and hunches of law professors concerning the impact of constitutional law ought to be subject to empirical testing. He asks:

[D]oes constitutional law make a difference to official behavior? Do the texts of constitutions influence official action? Do the emanations of courts affect the actions of officials? Affirmative answers to these questions are commonly assumed, but perhaps the time is ripe to examine such assumptions more critically in comparative context. 

When taken with a healthy dose of skepticism and awareness to their acknowledged limitations, empirical studies on the de facto (as opposed to de jure) effects of constitutional texts, traditions, and rulings can only contribute, not harm the state of knowledge on these matters. As Schauer puts it:

[R]esearch on the effects of law is often conducted by people interested in law. And people interested in law are often people whose interest is fueled by the belief that law matters. Thus, research on the extent to which constitutions or constitutional decisions have contributed to some outcome or end-state needs to be attentive to the possibility that in a world of multiple causation the constitutional causes may be exaggerated by those whose interests are in constitutional matters, just as they may be excessively diminished by those whose interests lie in other possible causes—economic, political, psychological, or cultural, for example—of social outcomes.

We could not have put it better ourselves.

A lighter way to describe the problem with widely held yet seldom tested insights in constitutional theory is what Tom Ginsburg colorfully termed the “seventh inning problem”—a fan who arrives at the baseball field just before the seventh inning begins and leaves when it concludes. “Focusing too much on court cases in the constitutional ‘game,’” Ginsburg suggests, “has precisely the same structure as the baseball fan who watches only one late inning. It means that we miss many of the most important questions—where does constitutional order come from? Who are the parties and what are they really fighting about? How does the court have the power it does? And what is the impact of the decision on real outcomes after the court decision? These questions can only be examined by broadening our temporal and conceptual frame.” Not only is such a seventh-inning snapshot unrepresentative of the entire game from a descriptive, “captain’s log” standpoint, but it also (as may be obscured by the baseball metaphor) misses the causal aspect of things: the deep origins or reasons behind what we see, as well as the consequences that ensue. In other words, what happens prior to or after a court ruling (and, for that matter, when a given right is entrenched in a constitution) is important not just for “setting the record straight” but also for understanding the place of a given court case or a given right in a broader causal story with a social context and root causes that predate a given constitutional provision or ruling and may or may not be affected by it.

Chilton and Versteeg’s book sets a new benchmark in the quest for more evidence-based examination of some of constitutional theory’s truisms. At the same time, it may raise some critical thoughts on the right balance between substance and method in this branch of scholarship. All told, the book’s main substantive argument—institutional backing for certain rights matters a great deal—appears to be a rather intuitive one. That organized interests stand a better chance to succeed than individual or scattered ones is a well-known insight in political science, economics, and public administration. It is readily evident in many policy areas, from military spending to political lobbying and to welfare regimes and labor relations (think corporatism). In fact, the entire idea of resource pooling applied in a wide range of areas and contexts is based on the notion that organized interests have an edge over unorganized ones. Two examples the authors refer to—labor unions and political parties—are prime examples but are certainly not unique or exclusive.

With that in mind, a critic might ask what is the desirable balance between advancing novel insights and a providing bulletproof empirical support for an intuitive insight, and even that in a qualified form. In raising the bar for empirical constitutional studies so high, one might infer from Chilton and Versteeg’s work here that a scientific approach to the constitutional universe is a top priority. But we could certainly envision a counterargument—whether coming from constitutional theory or from constitutional politics that sees the essence of novel thinking in advancing eye-opening substantive arguments—with the data analysis aside in a “supportive cast” role. Chilton and Versteeg do not set out to prescribe a method of empirical study for the field, but the tour de force that this book accomplishes will be influential on our collective thinking about how to proceed.

The actual substance of the empirical work in the book is almost above reproach, but we take note of some potentially important theoretical issues with empirical implications that the authors brush aside too quickly. The first is the authors’ surprising lack of curiosity about the way in which these particular rights are added to constitutions. It seems entirely plausible that the organizational rights with which the analysis is concerned would be more likely to be added to constitutions in contexts where organizations of these types (such as religious groups, unions, and political parties) are more influential, or are even constituent parts of the political elite that writes the constitution. Chilton and Versteeg are not unaware of this possibility, but dispense with it in an almost superficial way by describing the fact that the rights content of constitutions can be predicted by other matters, including the region and epoch of drafting (pp. 47–48). These matters are not beyond the reach of empirical study, as we have cross-national data on relevant measures such as levels of religiosity, the strength of civil society, and unionization rates.

Compounding the potential worry about endogeneity is the timing of the improvement in the enjoyment of several of the rights addressed in the book. We cannot help but note that in each of the organizational rights, the charts indicate an improvement in the enjoyment of the right in question either before or immediately coincident with the ratification of the new constitution. This timing seems to be more consistent with organizations becoming more prominent or empowered in the political context that surrounds constitutional change than with an effective and self-enforcing constitutional right. If the real exercise of the right depends to some degree on organizations defending their interests through either political action or litigation, should we not expect to see some years pass as organizations make these gains? Particularly in the case of litigation, a delay of several years might be expected before notable gains from constitutionalization could be measured. Is it not more plausible to interpret these dynamics as being consistent with the constitutional protection of groups that have already attained a high degree of political power?

A second is the foundational distinction between individual rights and organizational rights. Chilton and Versteeg are quite transparent about the potential challenges in making this distinction (pp. 18 & 61). The authors note, for example, that freedom of expression has both individual and organizational dimensions. However, we think that there are at least two groups of rights not considered in the book—the right to own property and the rights of the criminally accused—that highlight some of the challenges that attend this important distinction.

The first is the right to own property. While the authors make some references to corporations, they do not engage at all with the extent to which constitutional protections of the right to ownership may or may not be effective. It seems to us that property rights and their backing are the most organized of all rights. Given the impressive scope of the analysis in the book, the lack of engagement with what is arguably the most institutionalized, deeply engrained right, whose protection runs well beyond the constitutional domain and is reflected in anything from our moral intuition to ownership registration apparatuses to tax law and inheritance law, is quite surprising.

We certainly grant that the book has more than enough to deal with already, but the issue of property rights is theoretically interesting. One of the central claims in the book is that constitutionalizing a right helps to solve a coordination problem. Government overreach or abuse becomes clearer when there is constitutional text to bring to the argument. However, as an example, the Canadian Constitution contains no right to own property, but we would be very surprised if Canadian citizens did not feel that their rights had been violated if the government took over title to their real or moveable property. The right would appear to have effects without constitutionalization. Meanwhile, the right also appears to have organizational aspects. While we would normally think of the right to property at the individual level, it is clearly a matter of great importance to corporations. As another example, the centrality of the property clause to the South African constitution-making process is well known as a matter of interest to both corporations (such as mining firms) who wished to retain their property, and to individuals and families who had been dispossessed both before and during apartheid. How might the Chilton and Versteeg theory of rights enforcement deal with property—at the individual or organizational level?

We can consider these two empirical and theoretical points in conjunction through the example of the constitutionalization of the rights of Indigenous peoples in the constitutions of the Americas. While recognition of the rights of Indigenous peoples in settler law has a long history in the Americas (dating at least to the Royal Proclamation of 1763 in British North America, and perhaps two hundred years earlier in some Spanish possessions), the incorporation of these rights in national constitutions has been much more recent. Two aspects of this more recent development seem particularly relevant to the present discussion. The first is that these rights were not added to constitutions as a first step toward the empowerment of Indigenous communities. Rather, they were added to constitutions after Indigenous peoples became political forces within their larger settler or mixed polities. For example, the rights of Indigenous peoples were added to the 1998 Constitution of Ecuador after the Confederation of Indigenous Nationalities of Ecuador (CONAIE) took a very active role in the constitution-making process. Their success was evidenced by the recognition in Title I of Ecuador as a “multicultural and multinational state,” and adding Indigenous collective rights, including special rights in the areas of land, education, and health. If we were to try to discern the effects of the constitutionalization of Indigenous rights, we could not do so without taking account of the longer-running political processes that led to the constitutionalization of these rights to begin with.

Second, Indigenous rights challenge the distinction between individual and organizational rights in an important way. One of the innovations brought about by constitutionalization of Indigenous rights has been the recognition of communal or collectively held property. While previously property was the domain of the individual or the corporation, more recent constitutions have taken notice of the way in which Indigenous communities have established property ownership in a communal way, giving legal effect (and constitutional status) to long-standing Indigenous practices. As the Supreme Court of Canada affirmed when it first recognized Indigenous titles as a pre-existing matter of law (i.e., not dependent on later Canadian law) in 1973: “[W]hen the settlers came, the Indians [sic] were there, organized in societies and occupying the land as their forefathers had done for centuries.” Longstanding land tenure practices demand recognition on their own terms, and are not easily incorporated into settler legal frameworks. The collective dimension of these rights to land ownership seem germane to Chilton and Versteeg’s concept of organizational rights as “granted to organizations, or, by their nature, are practiced within formal organizations” (p. 53). To give a few concrete examples: the constitution of Colombia recognized the “communal lands of ethnic groups” in a constituent process that involved representatives of Colombia’s Indigenous peoples in 1991, and the constitution of Paraguay added the right of Indigenous peoples to “communal ownership of the land, in [an] extension and quality sufficient for the preservation and the development of their particular forms of lifestyles” in response to pressure from the Instituto Paraguayo del Indígena (INDI) in 1992. Clearly these are not individual rights. They are rights that were added to constitutions in response to demands from organizations. However, it seems reductionist to speak of Indigenous rights as being “organizational.” The histories of the various settler societies in the Americas seem to support the general theory that Chilton and Versteeg advance in the following sense: to the extent Indigenous rights are respected, they have an organizational dimension, yet the real function of these rights often involves the state harming the interests of Indigenous communities.

These points suggest to us that it may be profitable to expand Chilton and Versteeg’s dichotomous conceptualization of rights as being individual or organizational, and suggest a distinct third category of rights that pertain to groups. Our discussion of Indigenous rights is but one example of the now long-standing academic and legal recognition of group rights as a distinct category. Introducing a symposium on the topic, Will Kymlika and Ian Shapiro wrote:

Focusing solely on whether the rights are exercised by individuals or groups misses what is really at issue in cases of ethnocultural conflict. The important question is whether the familiar system of common citizenship rights within liberal democracies—the standard set of civil, political, and social rights which define citizenship in most democratic countries—is sufficient to accommodate the legitimate interests which people have in virtue of their ethnic identity. 

In our view, group rights might be distinguished from organizational rights in several ways that are broader than ethnic identity, but certainly accommodating of it. First, the rights do not require the existence of a formal or legal organization. These rights are legal recognitions of difference, and pertain in most cases to racialized or minority religious communities. Second, group rights are not merely individual rights that are enjoyed in an organization. As Peter Jones notes:

A right is a group right only if it is borne by the group qua group. . . . What distinguishes a right as a group right is its subject rather than its object—who it is that holds the right rather than what the right is a right to.

Of particular relevance for our immediate context, Jones specifically argues that the right to join a trade union is not a group right, but an individual right. The right to form and join political parties would not be classified as a group right either. Depending on the particular form of its legal expression, we might not consider the right to freely practice one’s religion to be a group right. For example, the U.S. right to be free from government “prohibiting the free exercise” of religion is an individual right. However, the right of Canadian Roman Catholics in the province of Ontario to have publicly funded religious schools would be a group right.

Considering group rights as a separate category from individual and organizational rights has several normative and empirical advantages. Normatively, it is right to give a higher status to the rights (for example) of Indigenous peoples to preserve and protect their land and culture, in comparison with the grubbier (but important) right to form a political party. Empirically, this distinction helps us to add some nuance to Chilton and Versteeg’s theory about the determinants of rights enforcement. The authors suggest that organizational rights are more likely to be enforced because there is an organization behind the right that can impose costs on the government for violating the right. In contrast, the groups whose rights are recognized are rarely able to impose costs on the government. Instead we would argue that the extent to which group rights are effective is determined by the status of the relevant group within the larger political community. Turning again to the example of Canada’s relationship with Indigenous peoples, we can see that the gains First Nations have made before the courts are closely related to increasing societal recognition of the ways in which Canada has murdered, starved, and forcibly relocated Indigenous people. Indigenous Canadians did not become a more powerful voting bloc during the twentieth century, but their status as a community with a right to legal protection certainly became more widely recognized. This does not follow the organizational logic that Chilton and Versteeg describe. Neither does it contradict it. Adding a third category, however, adds nuance to the findings that might help us better understand how and when rights will be effective.

Another group of rights that seems to be in essence individual, but that has organizational emanations, is the rights of the criminally accused. By far the most commonly litigated rights are criminal due process rights: the presumption of innocence, the right to remain silent, the right to be tried within reasonable time, the exclusion of illegally obtained evidence, etc. It is not entirely clear how the individual-versus-organizational distinction may be applied to this category of rights. On the one hand, these rights lack organizational support of the kind Chilton and Versteeg associate with labor unions, political parties or religious establishments. On the other hand, courts control the enforcement of these rights more than they do the enforcement of any other type of right. If courts decide not to admit a piece of evidence for due process reasons, it will not be admitted. So in practice, the court system itself may be seen as a relevant organizational apparatus in the context of due process rights. 

Even more theoretically illuminating is the relationship between litigation and advocacy on these issues and the larger dynamics of collective action that Chilton and Versteeg discuss in Chapter Two. It seem to us that Mancur Olson’s “by-product” theory of collective action applies perfectly here. In landmark cases (especially in common law jurisdictions), individuals have challenged various aspects of criminal procedure for their own immediate personal gain, but supported by organizations (such as the American Civil Liberties Union in the United States) that advocate on behalf of all persons involved in the criminal justice system. Here the individual and the organizational meet.

In the end, an obvious question here is what makes Chilton and Versteeg’s study a constitutional one, for ultimately they assign a small (if any) role to the constitutional domain itself, including constitutional courts and constitutional jurisprudence in the de facto protection of rights. Since the 1960s’ rights revolution in the United States, litigation has been portrayed as the main path for social change, at least in most settings. If all that matters is organizational dimensions of rights, what happens to courts, jurisprudence, ideational or strategic accounts of judicial behavior or judicial appointments? And what role is left for litigation-oriented nongovernmental organizations working on behalf of causes currently viewed to be on the fringes of public consciousness, or for the rights of disempowered groups? In the beginning, we noted that the book was, in a sense, closing a research agenda. While Chilton and Versteeg close the book by noting a number of points that should be researched further, the comprehensive dismantling of many theories of effective rights enforcement that this book accomplishes raises important, possibly even existential questions for the praxis of constitutional activism.

Along the same lines, in recent years, international organizations of various types, ranging from Amnesty International and Human Rights Watch to the United Nations, have invested their resources in encouraging states to adopt rights protections at the national or international level. Meanwhile, supra-national quasi-constitutional orders and tribunals, and international tribunals of various sorts have become increasingly important for individuals and groups whose rights have been violated by their domestic governments. As such supra-national organizational networks evolve, it is not clear whether the more traditional organizational dimension the authors identify will hold, and if so, how.

The hallmark of every outstanding work is its ability to generate further questions and to propel the pertinent discourse in a given field to new levels, whether methodological or theoretical. One would be hard-pressed to think of a recent work that so satisfyingly meets these criteria than Chilton and Versteeg’s How Constitutional Rights Matter. The few quibbles we presented in this Essay only reflect our scholarly admiration for this book and its authors as grandmasters of their scholarly brand. More than anything else, they serve as indication for the book’s achievement in setting a new, near-impossible to surpass, gold standard for high-quality empirical constitutional scholarship.