Courts’ Limited Ability to Protect Constitutional Rights
Constitutional scholars have generally put faith in courts’ ability to improve the protection of constitutional rights. While courts have limited means to enforce their own decisions, the literature suggests that their decisions are implemented either when courts enjoy strong legitimacy or when they bring functional benefits to other branches. In this Essay, we call this conventional wisdom into question. We present data suggesting that the existence of independent courts does not increase the probability that governments will respect constitutional rights. We outline four reasons why this might be so. First, courts that too frequently obstruct the political branches face court-curbing measures. Second, courts avoid high-profile clashes with the political branches by employing various avoidance canons or deferral techniques. Third, courts protect themselves by issuing decisions that are mostly in line with majoritarian preferences. Finally, courts are ill equipped to deal with certain types of rights violations like torture and social rights. All these accounts offer a potential explanation for why courts’ ability to enforce constitutional rights is more limited than is commonly believed.
Introduction
TOPIn October 2015, Poland’s newly elected conservative government moved swiftly to neutralize the country’s Constitutional Tribunal.1
See Tomasz Tadeusz Koncewicz, Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Self-Defense (I×CONnect, Dec 6, 2015), archived at http://perma.cc/JC8P-QYTG.See also Joanna Fomina and Jacek Kucharczyk, Populism and Protest in Poland, 27 J Democracy 58, 62–63 (Oct 2016).
This Polish constitutional blitzkrieg is one of the latest examples of a series of attacks on constitutional courts globally. In 2012, Hungary’s right-wing government adopted a new constitution that both allowed the government to pack the constitutional court with government supporters and stripped the court of many of its powers.2
See Stephen Gardbaum, Are Strong Constitutional Courts Always a Good Thing for New Democracies?, 53 Colum J Transnatl L 285, 295–97 (2015).
See Neil Buckley, Judges Caught in Romania Power Struggle (Fin Times, Aug 7, 2012), online at http://www.ft.com/cms/s/0/113332a2-e0af-11e1-8d0f-00144feab49a.html#axzz40TxNtdGl(visited Aug 29, 2017) (Perma archive unavailable).
See Alexei Trochev, Fragmentation? Defection? Legitimacy? Explaining Judicial Roles in Post-Communist “Colored Revolutions,” in Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan, eds, Consequential Courts: Judicial Roles in Global Perspective 67, 67–68 (Cambridge 2013).
See Lee Epstein, Jack Knight, and Olga Shvetsova, The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government, 35 L & Society Rev 117, 135–37 (2001).
For example, in November 2012, the Sri Lankan parliament successfully impeached the chief justice of the supreme court after the court held that various parts of a government’s controversial bill were inconsistent with the constitution. Accused of misuse of power, the chief justice was removed from her office by the Sri Lankan president who ignored a court of appeals’ decision finding the impeachment process illegal. Other judges received threatening phone calls. See Sri Lanka: New Chief Justice Sworn In (NY Times, Jan 15, 2013), online at http://www.nytimes.com/2013/01/16/world/asia/sri-lanka-new-chief-justice-sworn-in.html(visited Dec 13, 2017) (Perma archive unavailable); Sri Lanka Ruling Party MPs Move to Impeach Top Judge (Express Trib, Nov 1, 2012), archived at http://perma.cc/46ZM-KNEQ;Hafeel Farisz and Dasun Rajapakshe, Appeal Court Judges Get Threatening Calls (Daily Mirror, Jan 8, 2013), archived at http://perma.cc/F4TB-TW7K.
In August 2012, in Egypt, the newly approved constitution reduced the size of the Supreme Constitutional Court from nineteen to eleven members, retaining the ten longest serving members and the chief justice. This was widely viewed as a political move to remove the anti–Muslim Brotherhood justices, including the court’s only female member. See Jeffrey Fleishman and Reem Abdellatif, Egypt President Mohamed Morsi Expands Authority in Power Grab (LA Times, Nov 22, 2012), archived at http://perma.cc/6ALA-43CF;Liliana Mihaila, Why the Reduction in SCC Justices? (Daily News Egypt, Dec 24, 2012), online at http://dailynewsegypt.com/2012/12/24/why-the-reduction-in-scc-justices/(visited Dec 13, 2017) (Perma archive unavailable).
In the mid- to late 1990’s, after repeated clashes between Pakistan’s government and the supreme court, then–Prime Minister Benazir Bhutto “aggressively sought to pack the courts with judges regarded as loyal to her party’s interests—ignoring basic rules concerning qualifications for appointment and seniority-based conventions for elevating judges, and further manipulating judicial composition by appointing ad hoc judges and transferring judges between courts.” Anil Kalhan, “Gray Zone” Constitutionalism and the Dilemma of Judicial Independence in Pakistan, 46 Vand J Transnatl L 1, 40 (2013). The current Pakistani prime minister, Nawaz Sharif, “proved no less aggressive, clashing with the Supreme Court over appointments and other issues and later engaging in an ugly effort to remove the chief justice, which culminated in a physical attack on the Supreme Court building by a mob of Sharif’s supporters.” Id.
See Gulsen Solaker, Turkish Judge Defies Erdogan with Attack on ‘Dire’ Allegations (Reuters, Apr 25, 2014), archived at http://perma.cc/8N3V-6W4Q(describing the conflict between then–Prime Minister Recep Tayyip Erdoğan and the constitutional court).
See Jonathan Lis, Kulanu Balks at Likud Demand to Weaken Israel’s Supreme Court (Haaretz, Apr 21, 2015), online at http://www.haaretz.com/israel-news/.premium-1.652811(visited Oct 5, 2017) (Perma archive unavailable) (describing recent attempts by the government to reduce the supreme court’s power and change the court’s appointment mechanism).
See Gardbaum, 53 Colum J Transnatl L at 298 (cited in note 2) (noting that President Jacob Zuma described some of the constitutional court’s judges as “counter revolutionaries” and has asked for a review of the court’s power and an evaluation of whether the court has stood in the way of socioeconomic transformation).
These developments are concerning because judges are typically seen as the main “guardians of the constitution”: the ones who ensure that governments will not overstep their powers or encroach on citizens’ rights.12
See Carl Schmitt, The Guardian of the Constitution ch I.1–3, in Lars Vinx, ed, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law 79, 79–90 (Cambridge 2015) (Lars Vinx, trans).
See, for example, Stephen Holmes, Precommitment and the Paradox of Democracy, in Jon Elster and Rune Slagstad, eds, Constitutionalism and Democracy: Studies in Rationality and Social Change 195, 236–37 (Cambridge 1988); Daniel A. Farber, Rights as Signals, 31 J Legal Stud 83, 92–93 (2002).
See Richard H. Fallon Jr, The Core of an Uneasy Case for Judicial Review, 121 Harv L Rev 1693, 1728–31 (2008).
See, for example, Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective 7–8 (Chicago 1998) (noting that a “rights revolution” consists of “judicial attention to the new rights, judicial support for the new rights, and implementation of the new rights” whereas implementation is “the extent to which courts have issued a continuing stream of judicial decisions that enforce or elaborate on earlier decisions”); David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment 7 (UBC 2012) (“Because of the prominent role of courts in this process, the rights revolution is closely tied to constitutionalism and the judicialization of politics.”).
See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 21–33 (Cambridge 2003) (“By ensuring that losers in the legislative arena will be able to bring claims to court, judicial review lowers the cost of constitution making and allows drafters to conclude constitutional bargains that would otherwise be unobtainable.”).
See Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts 132–36 (Cambridge 2015).
The faith in courts is widespread not only in the academic literature but also in policy circles. Organizations like the World Bank and US Agency for International Development (USAID) have spent billions of dollars on strengthening judicial independence and capacity around the world, relying, at least in part, on the assumption that functional, independent courts will enforce rights.18
See, for example, David M. Trubek, The “Rule of Law” in Development Assistance: Past, Present, and Future, in David M. Trubek and Alvaro Santos, eds, The New Law and Economic Development: A Critical Appraisal 74, 74 (Cambridge 2006) (noting that the World Bank has spent $2.9 billion on rule-of-law reforms since 1990).
See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism 1–3 (Harvard 2004) (describing the judicial empowerment that resulted from the “sweeping worldwide convergence to constitutionalism”).
See C. Neal Tate and Torbjörn Vallinder, The Global Expansion of Judicial Power: The Judicialization of Politics, in C. Neal Tate and Torbjörn Vallinder, eds, The Global Expansion of Judicial Power 1, 5–6 (NYU 1995).
Our research, however, suggests that the presence of independent courts alone might not be enough to stop a government determined to curb its citizens’ rights. As part of a multiyear research project, we have explored, through both quantitative analysis and case studies, whether and how constitutional rights guard against actual rights violations.21
See generally Adam S. Chilton and Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am J Polit Sci 575 (2016); Adam S. Chilton and Mila Versteeg, The Failure of Constitutional Torture Prohibitions, 44 J Legal Stud 417 (2015); Adam S. Chilton and Mila Versteeg, International Law, Constitutional Law, and Public Support for Torture, 3 Rsrch & Polit 1 (Jan–Mar 2016); Adam S. Chilton and Mila Versteeg, Rights without Resources: The Impact of Constitutional Social Rights on Social Spending, J L & Econ (forthcoming), archived at http://perma.cc/VV7C-TTGV;Adam S. Chilton, Maria Smirnova, and Mila Versteeg, Constitutional Rights in Action; a Case Study on Religious Freedom in Russia (unpublished manuscript).
See, for example, Chilton and Versteeg, 60 Am J Polit Sci at 584–85 (cited in note 21).
In trying to make sense of this puzzle, we argue that rights enforcement ultimately falls on citizens themselves. When citizens are organized, they can act strategically to resist rights encroachments through strikes, protests, civil disobedience, and mobilizing the political opposition, as well as litigation. Coordinating such action, however, is not easy and is prone to coordination failure. In earlier work, we have argued that for some rights, it is easier to overcome such collective-action problems because they are practiced by and within formal organizations. 23
See id.
See id at 582–84.
See id.
Importantly, when organized groups of citizens mobilize to protect rights, litigation is merely one of the available tools to protect their interests. For example, our case study on religious freedom in Russia reveals that religious groups have mobilized to protect religious freedom by lobbying sympathetic lawmakers, circulating petitions, engaging in public discourse, and organizing education campaigns, in addition to resorting to litigation.26
Chilton, Smirnova, and Versteeg, Constitutional Rights in Action (cited in note 21).
Our goal in this Essay is to present some of the global data on the relationship between independent constitutional courts and constitutional-rights enforcement and to set forth some explanations for why courts might be less powerful than is commonly assumed. The remainder of this Essay unfolds as follows. Part I reviews the two main theoretical accounts for how and why courts might be able to enforce rights. Part II presents data suggesting that independent courts do not increase the protection of constitutional rights. The statistical analysis that underlies our ultimate conclusion is available in the Appendix.27
Similar results will further feature in our forthcoming book manuscript and have partly been featured in our peer-reviewed publications.
I. Theories of Judicial Review: Legitimacy and Functional Benefits
TOPThe finding that independent courts are often powerless to enforce the constitution against overbearing governments might come as a surprise to many. When confronted with the puzzle of why political actors would obey the constitution’s constraints on their power, legal scholars and practitioners are often quick to point to the judicial branch.28
See Jack Goldsmith and Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv L Rev 1791, 1830–31 (2009) (observing that constitutional scholars rarely ask why the constitution is complied with, and that “[w]hen such questions are raised . . . the answers tend to begin and end with judicial review”).
It is not obvious, however, that courts should be successful in enforcing rights against the government. One of the fundamental features of constitutional law is that it lacks an external, super–state enforcement authority capable of coercing political actors to comply with the constitution.29
See id at 1795. See also Gillian K. Hadfield and Barry R. Weingast, Constitutions as Coordinating Devices, in Sebastian Galiani and Itai Sened, eds, Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North 121, 122 (Cambridge 2014); Russell Hardin, Why a Constitution? (“Why a Constitution? (2013)”), in Denis J. Galligan and Mila Versteeg, eds, Social and Political Foundations of Constitutions 51, 53, 65–66 (Cambridge 2013); Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv L Rev 657, 662 (2011); Martin Shapiro, The European Court of Justice: Of Institutions and Democracy, 32 Isr L Rev 3, 8 (1998).
See Goldsmith and Levinson, 122 Harv L Rev at 1795–96 (cited in note 28).
See John Austin, The Province of Jurisprudence Determined 364 (Legal Classics 1984) (originally published 1832) (noting that “without men to enforce them,” constitutions are “merely idle words scribbled on paper or parchment”); Frederick Schauer, The Force of Law 89–92 (Harvard 2015).
The same is true for judicial decisions enforcing the constitution.32
See Dieter Grimm, Judicial Activism, in Robert Badinter and Stephen Breyer, eds, Judges in Contemporary Democracy: An International Conversation 17, 26 (NYU 2004) (“It is the specific weakness of constitutional courts that the power is in the hands of those who are affected by their decisions.”).
Federalist 78 (Hamilton), in The Federalist 521, 522–23 (Wesleyan 1961) (Jacob E. Cooke, ed) (deeming the judiciary the “least dangerous” branch).
31 US 515 (1832).
See Richard H. McAdams, The Expressive Powers of Law: Theories and Limits 58 (Harvard 2015).
There are two main explanations in the literature for how the judiciary can enforce constitutional rights even when the political branches dislike the judicial decision. The first set of explanations—legitimacy theories—holds that courts can do so when they enjoy high levels of legitimacy as an institution. The second set of explanations—functional theories—suggests that independent courts, equipped with the power of judicial review, bring important functional benefits, such as aiding coordination and providing focal points, that outweigh the costs of complying with occasional unfavorable rulings.
A. Legitimacy Theories
TOPA line of research has argued that constitutional court decisions are complied with because of the courts’ legitimacy.36
See, for example, David Easton, A Systems Analysis of Political Life 267–68 (Chicago 1979); David Easton, A Re-assessment of the Concept of Political Support, 5 British J Polit Sci 435, 450–53 (1975); James L. Gibson and Gregory A. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice, 39 Am J Polit Sci 459, 461 (1995); James L. Gibson, Gregory A. Caldeira, and Vanessa A. Baird, On the Legitimacy of National High Courts, 92 Am Polit Sci Rev 343, 344–46 (1998); Richard H. Fallon Jr, Legitimacy and the Constitution, 118 Harv L Rev 1787, 1794–96 (2005). Recent work by Professors Tom Ginsburg and Nuno Garoupa conceptualizes some of these same ideas as judicial reputation. See Nuno Garoupa and Tom Ginsburg, Judicial Reputation: A Comparative Theory 14–23 (Chicago 2015). There is a related strand of research, tracing back to Max Weber, that deals with the legitimacy of law more broadly, which we set aside here. There is also a strand of legitimacy theory that is more normative in character. See generally, for example, Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 Am J Intl L 596 (1999). There are also studies focused on procedural legitimacy. See generally, for example, Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just 283 (2003).
Easton, A Systems Analysis of Political Life at 273 (cited in note 36). See also Easton, 5 British J Polit Sci at 444 (cited in note 36).
This distinction is used by most political science accounts on legitimacy. See, for example, Gibson and Caldeira, 39 Am J Polit Sci at 474–76 (cited in note 36); Gregory A. Caldeira and James L. Gibson, The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support, 89 Am Polit Sci Rev 356, 365–67 (1995); Gibson, Caldeira, and Baird, 92 Am Polit Sci Rev at 348–52 (cited in note 36); Yonatan Lupu, International Judicial Legitimacy: Lessons from National Courts, 14 Theoretical Inquiries L 437, 440–45 (2013).
Legitimacy is something that courts build over time. In a study of the high courts of eighteen EU member states, Professors James Gibson, Gregory Caldeira, and Vanessa Baird find that building legitimacy requires gaining support among successive, nonoverlapping constituencies.39
See Gibson, Caldeira, and Baird, 92 Am Polit Sci Rev at 354–55 (cited in note 36).
See Shapiro, 32 Isr L Rev at 11 (cited in note 29) (suggesting that a court that “consistently favors some of the power holders over others” will not be seen as neutral, which might undermine its success).
See Heinz Klug, Constitutional Authority and Judicial Pragmatism: Politics and Law in the Evolution of South Africa’s Constitutional Court, in Kapiszweski, Silverstein, and Kagan, eds, Consequential Courts 93, 109–12 (cited in note 4).
See Fallon, 118 Harv L Rev at 1840–41 (cited in note 36). See also Philip Bobbitt, Constitutional Fate: Theory of the Constitution 5, 234–35 (Oxford 1982) (suggesting different styles of constitutional argument that can improve legitimacy); Shapiro, 32 Isr L Rev at 9 (cited in note 29).
Of course, tension may arise from courts’ desire to issue well-reasoned decisions, on one hand, and distributing legal victories evenly, on the other. It is unclear to what extent these two phenomena respectively impact judicial legitimacy. Regardless, the lesson of the legitimacy view is that when stakeholders view the court as the rightful arbiter of constitutional rights, it adds to the court’s reservoir of good will and favorable attitudes. When there is widespread support for the institution as a whole, this increases the likelihood that the government will comply with adverse decisions or else the government itself will lose popularity and may face electoral consequences.
By its nature, legitimacy is usually acquired slowly and easily diminished. A court that frequently appears to disfavor one side—especially when that side is the government—can quickly lose legitimacy. When its legitimacy is depleted, a court may find that decisions that lack specific support are simply not enforced. The court might also witness various other forms of backlash, such as court packing, a change in judicial appointment procedures, or other strategies to curb the court’s independence. We return to this point in Part III.
B. Functional Theories
TOPA second set of explanations focuses on the functional utility of courts. Perhaps the best-known functional theory emphasizes courts’ ability to clarify law and to provide focal points for coordination.43
See Russell Hardin, Liberalism, Constitutionalism, and Democracy 85–140 (Oxford 1999); Russell Hardin, Why a Constitution? (“Why a Constitution? (1989)”), in Bernard Grofman and Donald Wittman, eds, The Federalist Papers and the New Institutionalism 100, 102 (Agathon 1989); Hardin, Why a Constitution? (2013) at 59–62 (cited in note 29).
See Hardin, Why a Constitution? (1989) at 101 (cited in note 43) (noting that a constitution “establishes conventions” that “make it easier for us to cooperate and to coordinate”).
McAdams, The Expressive Powers of Law at 119–35 (cited at note 35).
It is because of the benefits derived from the supply of focal points that governments comply with judicial decisions they do not like. As Professor Russell Hardin notes, supporters of presidential candidate Al Gore ultimately acquiesced in the Bush v Gore46
531 US 98 (2000) (per curiam).
See Hardin, Why a Constitution? (2013) at 57–58 (cited in note 29). Others have explained compliance with this same decision based on the court’s legitimacy. See generally James L. Gibson, Gregory A. Caldeira, and Lester Kenyatta Spence, Why Do People Accept Public Policies They Oppose? Testing Legitimacy Theory with a Survey-Based Experiment, 58 Polit Rsrch Q 187 (2005).
See Levinson, 124 Harv L Rev at 710–11 (cited in note 29).
Notably, these coordination benefits are more relevant to structural issues than rights, as it is the day-to-day operation of government in which coordination is needed most.49
See Shapiro, 32 Isr L Rev at 22–23 (cited in note 29).
See id at 23 (noting that, unlike for the separation of powers, in the realm of constitutional rights, the “contract does not enforce itself” but courts “must enforce it against powerful, united, majority forces”).
See David S. Law and Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Cal L Rev 1163, 1200–02 (2011) (presenting a list of rights provided by a large majority of constitutions).
See David S. Law, A Theory of Judicial Power and Judicial Review, 97 Georgetown L J 723, 757–59 (2009) (describing court adjudication as a means of avoiding conflict and solving coordination problems).
See Hardin, Why a Constitution? (2013) at 57–58 (cited in note 29).
There are other functional benefits that can flow from having an independent constitutional court. Professor Tamir Moustafa argues that Egyptian President Anwar Sadat created an independent constitutional court to attract foreign investors, and that until recently, the Egyptian government complied with the court’s decisions in order to reap the long-term benefits of foreign investment.54
See Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt 6 (Cambridge 2007). See also Douglass C. North and Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J Econ Hist 803, 816–23 (1989) (suggesting that credible constitutional commitments to protect private property allow governments to access capital).
Shapiro, 32 Isr L Rev at 4–5 (cited in note 29).
See Ginsburg, Judicial Review in New Democracies at 21–33 (cited in note 16).
Just like legitimacy can be depleted, functional benefits can lose their value. When courts too frequently obstruct the political process, the costs of complying with judicial decisions might outweigh the functional benefits provided by the court. The possibility of backlash is particularly salient when the court issues many unfavorable rulings based on the bill of rights, for which there are fewer coordination benefits to begin with. In such cases, courts may find their jurisdiction stripped or their decisions overturned by constitutional amendment. We also return to this issue in Part III.57
For a discussion of court curbing, see notes 80–94 and accompanying text.
II. Empirical Evidence
TOPAlthough the legitimacy and functional theories may have appeal, a systematic analysis of the available quantitative data reveals little support for the idea that courts improve compliance with constitutional rights. In this Part, we briefly describe other scholars’ empirical research on the impact of constitutional courts on the protection of constitutional rights and then present some of our own data and empirical results on the subject.
A. Prior Literature
TOPWe are not the first to explore the ability of courts to affect constitutional-rights enforcement. Setting aside normative and doctrinal work, which often takes this ability for granted, the question has been addressed in both the qualitative comparative constitutional law literature and in a handful of prior quantitative studies.
The bulk of the comparative constitutional law literature has been quite bullish on the ability of courts to enforce constitutional rights.58
See Gardbaum, 53 Colum J Transnatl L at 294 (cited in note 2) (characterizing the mood on constitutional courts as “bullish”).
See, for example, Tom Ginsburg, Aziz Z. Huq, and Mila Versteeg, The Coming Demise of Liberal Constitutionalism?, 85 U Chi L Rev 239, 253–54 (2018).
See, for example, David Landau, The Reality of Social Rights Enforcement, 53 Harv Intl L J 189, 192 (2012) (discussing, among other countries, Hungary, South Africa, Colombia, and India).
For a critique on case selection in comparative constitutional law, see generally Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am J Comp L 125 (2005). See also Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law 224–67 (Oxford 2014).
Second, many of these studies take high-profile constitutional court cases as evidence that constitutional courts are making a difference. One example is Professor Charles Epp’s classic work on rights revolutions. Epp contends that a “rights revolution” has the following conditions: constitutional rights, constitutional courts, rights consciousness, and a legal support structure for mobilization comprising lawyers and organizations that bring cases.62
See Epp, The Rights Revolution at 11–20 (cited in note 15).
See, for example, Boyd, The Environmental Rights Revolution at 119–20 (cited in note 15).
Relatively few studies have explored the transformative effect of judicial decisions themselves. The ones that do tend to be less optimistic about courts’ ability to enforce rights than those who treat judicial decisions as the dependent variable. Professor Gerald Rosenberg’s famous study of the ability of US Supreme Court to bring about social change is an illustration.64
See generally Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago 2d ed 2008).
See Landau, 53 Harv Intl L J at 192 (cited in note 60).
See id at 202–03.
There are also a handful of quantitative studies that explore courts’ ability to enforce constitutional rights, although none have explored the question thoroughly. Most of the relevant quantitative empirical literature has focused on the correlation between courts and rights protections generally. More specifically, studies in both economics and political science have found that countries that have independent courts tend to have more respect for rights, including property rights67
See, for example, Rafael La Porta, et al, Judicial Checks and Balances, 112 J Polit Economy 445, 449 (2004).
See, for example, M. Rodwan Abouharb, Laura P. Moyer, and Megan Schmidt, De Facto Judicial Independence and Physical Integrity Rights, 12 J Hum Rts 367, 383 (2013) (finding that higher levels of judicial independence are “associated with improved government respect for physical integrity rights”); Charles Crabtree and Michael J. Nelson, New Evidence for a Positive Relationship between De Facto Judicial Independence and State Respect for Empowerment Rights, 61 Intl Stud Q 210, 217 (2017) (finding that an independent judiciary is associated with the protection of “empowerment rights”); Frank B. Cross, The Relevance of Law in Human Rights Protection, 19 Intl Rev L & Econ 87, 94–96 (1999) (finding that judicial independence is associated with greater political rights and protection against unreasonable search and seizure); Linda Camp Keith, Judicial Independence and Human Rights Protection around the World, 85 Judicature 195, 200 (2002) (finding that some formal constitutional guarantees for judicial independence are associated with better rights protections); Linda Camp Keith, C. Neal Tate, and Steven C. Poe, Is the Law a Mere Parchment Barrier to Rights Abuse?, 71 J Polit 644, 658 (2009) (finding that “pursuing better human rights through constitutional law making” can lead to better human-rights outcomes); Emilia Justyna Powell and Jeffrey K. Staton, Domestic Judicial Institutions and Human Rights Treaty Violation, 53 Intl Stud Q 149, 167 (2009) (finding that effective legal systems are associated with lower rates of human-rights abuse). But see Courtenay Ryals Conrad and Will H. Moore, What Stops the Torture?, 54 Am J Polit Sci 459, 464 (2010) (finding that judicial independence does not increase the probability that a “torture spell” will end).
See North and Weingast, 49 J Econ Hist at 815–19 (cited in note 54).
Only a handful of studies have directly explored courts’ ability to enforce constitutional-rights provisions—rather than to document a general correlation between courts and rights—using quantitative methods. An early study by Professor Frank Cross of a cross section of fifty-three countries found that independent courts did not increase the enforcement of constitutional protections against unreasonable search and seizures.70
See Cross, 19 Intl Rev L & Econ at 96 (cited in note 68). Cross did find, however, that judicial independence was more impactful in countries without constitutional protections. Id at 96–97.
See James Melton, Do Constitutional Rights Matter? *23–24 (unpublished manuscript, Sept 16, 2014), archived at http://perma.cc/YGY2-GS8L.
See Crabtree and Nelson, 61 Intl Stud Q at 221 (cited in note 68) (Table 7).
Importantly, in none of these papers is the impact of independent judicial review on constitutional-rights enforcement the main object of enquiry. In the remainder of this Part, we will provide an impression of our overall findings by presenting descriptive data. Full results using statistical methods are available in the Appendix.
B. Data
TOPTo explore the relationship between judicial review and constitutional-rights enforcement, we first need data on constitutional-rights protections and actual respect for those rights in practice. We focus on nine constitutional rights: (1) the right to unionize (“Unionization”); (2) the right to form political parties (“Political Parties”); (3) the freedom of religion (“Religion”); (4) the right to gender equality (“Gender Equality”); (5) the prohibition of torture (“Torture”); (6) the freedom of expression (“Expression”); (7) the freedom of movement (“Movement”); (8) the right to education (“Education”); (9) the right to healthcare (“Health”). We choose these rights for a combination of substantive and practical reasons. The primary substantive reasons are that we wanted to explore rights that are substantively important, cover a wide range of issue areas, and include a number of different kinds of rights (including both civil and political rights and social and economic rights; and including both rights that are practiced within organizations and rights that are practiced individually). The primary practical reason is that we wanted to focus on rights for which there are time series data on the protection of those rights over time.
Figure 1 depicts the prevalence of these rights in the world’s constitutions from 1946 to 2010. All twelve rights are more common in 2010 than they were in 1946, but there is considerable variation in the current prevalence of these rights. This ranges from just 46 percent of countries that have a right to gender equality to 97 percent of countries that have a constitutional guarantee of freedom of expression.
Figure 1. Percent of Countries with Rights in Their Constitutions
To explore their impact, we match each of these twelve constitutional rights (de jure rights) to a measure of human-rights outcomes (de facto rights) within the country. These measures, which are based on the annual country reports from Amnesty International and the US State Department, have all been used in prior research on human-rights outcomes, including our own.73
See, for example, Chilton and Versteeg, 60 Am J Polit Sci at 580 (cited in note 21) (using the CIRI data set, which uses data from US State Department reports, to score countries’ de facto human-rights practices); Chilton and Versteeg, 44 J Legal Stud at 424–25 (cited in note 21) (using the CIRI data set, which uses data from US State Department and Amnesty International reports, to score countries’ torture practices); Chilton and Versteeg, Rights without Resources at *12 (cited in note 21).
|
De Jure Right |
Unionization |
|
De Facto Measure |
worker: de facto respect for the right to strike/unionize. |
|
Source |
CIRI |
|
De Jure Right |
Political Parties |
|
De Facto Measure |
elecsd: de facto respect for right to form political parties. |
|
Source |
CIRI |
|
De Jure Right |
Religion |
|
De Facto Measure |
new_relfre: de facto respect for freedom of religion. |
|
Source |
CIRI |
|
De Jure Right |
Gender Equality |
|
De Facto Measure |
hgi_ame: Historical Gender Equality Index, which is a composite indicator that includes information on gender inequality in women’s life expectancy, marriage age ratio, seats in parliament, years of schooling, and labor force participation, among other things. |
|
Source |
Dilli, et al (2014) |
|
De Jure Right |
Torture |
|
De Facto Measure |
latentmean: latent measure of repression. |
|
Source |
Fariss (2014) |
|
De Jure Right |
Expression |
|
De Facto Measure |
speech: de facto respect for freedom of press/expression. |
|
Source |
CIRI |
|
De Jure Right |
Movement |
|
De Facto Measure |
dommov: de facto respect for freedom of movement. |
|
Source |
CIRI |
|
De Jure Right |
Education |
|
De Facto Measure |
spending_edu: percentage of GDP spent on education. |
|
Source |
World Bank |
|
De Jure Right |
Health |
|
De Facto Measure |
spending_health: percentage of GDP spent on healthcare. |
|
Source |
World Bank |
|
De Jure Right |
De Facto Measure |
Source |
|---|---|---|
|
Unionization |
worker: de facto respect for the right to strike/unionize. |
CIRI |
|
Political Parties |
elecsd: de facto respect for right to form political parties. |
CIRI |
|
Religion |
new_relfre: de facto respect for freedom of religion. |
CIRI |
|
Gender Equality |
hgi_ame: Historical Gender Equality Index, which is a composite indicator that includes information on gender inequality in women’s life expectancy, marriage age ratio, seats in parliament, years of schooling, and labor force participation, among other things. |
Dilli, et al (2014) |
|
Torture |
latentmean: latent measure of repression. |
Fariss (2014) |
|
Expression |
speech: de facto respect for freedom of press/expression. |
CIRI |
|
Movement |
dommov: de facto respect for freedom of movement. |
CIRI |
|
Education |
spending_edu: percentage of GDP spent on education. |
World Bank |
|
Health |
spending_health: percentage of GDP spent on healthcare. |
World Bank |
C. Descriptive Exploration
TOPUsing these data, we explore whether independent judicial review improves the protection of constitutional rights. In Figure 2, the left panel depicts the average de facto rights measure for countries with and without the right in their constitution. As Figure 2 shows, countries with constitutional rights do not have noticeably better human-rights outcomes. Figure 2 reveals that the freedom of religion might be a noticeable exception. In a more systematic statistical analysis in which we control for a range of confounding factors, we find that religious freedom, the right to form political parties, and the right to unionize, are each associated with better rights practices.74
See Appendix A.
See Chilton and Versteeg, 60 Am J Polit Sci at 577–79 (cited in note 21).
Figure 2. Effect of Constitutional Rights on Rights Outcomes
We next explore whether this relationship between de jure and de facto rights is different in countries that have an independent judiciary equipped with the power of judicial review (a “Constitutional Court”). The right panel of Figure 2 presents the same graphs, but this time only for countries that have independent constitutional courts. We consider a country to have an independent constitutional court if: (1) the country is coded as having an independent judiciary by the widely used CIRI measure of judicial independence developed by Professors David Cingranelli, David Richards, and K. Chad Clay;76
The CIRI data on judicial review is based primarily on the US State Department’s assessment of judicial independence around the world. We code countries as having “Independent Judicial Review” if they score “2” for the CIRI measure injud.
We coded these data ourselves. For an exploration of what constitutes judicial review of constitutions, see Tom Ginsburg and Mila Versteeg, Why Do Countries Adopt Constitutional Review?, 30 J L, Econ & Org 587, 600–02 (2014). We added Israel and the United States as having judicial review even though the Israeli constitution is ambiguous and the US Constitution contains no explicit reference to constitutional review.
Although these results are merely exploratory and do not control for a range of relevant factors that can influence rights outcomes, they provide suggestive evidence that simply having an independent constitutional court does not automatically mean that a constitutional right is more likely to be respected in practice. In the Appendix, we use a range of statistical models and control for confounding factors. In our preferred specifications, reported in Appendix A, we do not find that the interaction between having any of these constitutional rights and an independent constitutional court is positive and statistically significant (the interaction between the freedom of movement and having a court is statistically significant but negative). In some of our robustness checks, we find a few instances of a positive interaction (for religion, torture, and speech), but these are not robust to alternative specifications. In general, we cannot reject the null hypothesis that there is no effect.78
See Appendix A.
III. Constitutional Courts’ Limitations
TOPHow is it possible that courts’ impact on constitutional-rights enforcement is so limited? Both the legitimacy and functional theories suggest important explanations for why court decisions could matter. But they also reveal inherent limitations in the power of judicial review. When a court frequently issues unfavorable rulings against those in power, it may start losing legitimacy or the functional benefits of having an independent court may pale in comparison with their costs. As Professor Shapiro has put it, there exists a tension between judicial lawmaking and judicial independence.79
See Martin Shapiro, Courts: A Comparative and Political Analysis 34 (Chicago 1981) (noting that “lawmaking and judicial independence are fundamentally incompatible”).
This Part explores four explanations for why courts may have limited power to enforce constitutional rights. Specifically, it suggests that: (1) courts may face court-curbing measures; (2) courts employ various doctrinal tools to avoid conflict with the political branches; (3) courts issue decisions largely in line with majoritarian preferences to avoid high-profile clashes with the political branches; and (4) courts are institutionally ill equipped to deal with certain types of rights violations, such as torture and social rights.
A. Court Curbing
TOPWhen a court is consistently out of step with political coalitions, political actors may retaliate against the court. Such measures are commonly referred to as “court curbing”—that is, “actual changes to the Court’s institutional power—through jurisdiction stripping, court packing, or other legislative means.”80
Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 Am J Polit Sci 971, 972 (2009).
See David Landau, Abusive Constitutionalism, 47 UC Davis L Rev 189, 195–215 (2013) (describing the phenomenon of “abusive constitutionalism,” whereby the tools of constitutional amendment and constitutional replacement are used for undemocratic means, including court curbing).
Although some have speculated that court-curbing measures are rare because courts will act strategically to avoid them, there are numerous real-world cases. Perhaps the most famous example is President Franklin D. Roosevelt’s court-packing plan. When the US Supreme Court repeatedly struck down legislation during the 1930s, Roosevelt responded with a plan to alter the composition of the court.82
This episode famously ended with Justice Owen Roberts’s “switch in time” in response to Roosevelt’s Court-packing plan. For a brief history of the Court-packing scheme and an analysis the Court’s response, see Barry Cushman, Rethinking the New Deal Court, 80 Va L Rev 201, 208–29 (1994).
In May 2016, Arizona Governor Doug Ducey, a Republican, signed into law a bill that expanded the Arizona Supreme Court from five to seven members. Arizona’s chief justice objected to the bill, as did Democrats in the state legislature, who accused Ducey and the Republicans of court packing. See Yvonne Wingett Sanchez, ‘Like Blackmail’: Judiciary Gets Money Only If Supreme Court Expands (Ariz Republic, Apr 28, 2016), archived at http://perma.cc/SXA7-XZ4R(quoting a Democratic state representative as saying that “[t]here’s absolutely no caseload reason to add Supreme Court judges, the only reason to do it is so the governor can stack the Supreme Court with his picks”); Yvonne Wingett Sanchez, Gov. Doug Ducey Signs Legislation to Expand Arizona Supreme Court (Ariz Republic, May 18, 2016), archived at http://perma.cc/58MR-ZQVF.The same story played out in Georgia that year, where the Republican-controlled state legislature passed a bill that expanded the Georgia Supreme Court from seven to nine members. Georgia Republicans offered the same rationale as their Arizona counterparts—an ability to handle an enlarged caseload in a growing state—and Democrats in the state also accused the GOP of court packing. See Kristina Torres, Expansion of Georgia’s Supreme Court Wins Final Approval (Atlanta Journal-Constitution, Mar 22, 2016), archived at http://perma.cc/X986-TXRU.Similar efforts have been made in Florida, South Carolina, North Carolina, and Iowa. See Russell Berman, Arizona Republicans Try to Bring Back Court-Packing (The Atlantic, May 10, 2016), archived at http://perma.cc/AG7F-KXDR.
There are many more recent examples. For instance, the Hungarian Constitutional Court, which struck down roughly one-third of all legislation it reviewed between 1990 and 1995,84
Kim Lane Scheppele, Democracy by Judiciary. Or, Why Courts Can Be More Democratic than Parliaments, in Adam Czarnota, Martin Krygier, and Wojciech Sadurski, eds, Rethinking the Rule of Law after Communism 25, 44 (CEU 2005).
See Gardbaum 53 Colum J Transnatl L at 295–96 (cited in note 2).
See Miklós Bánkuti, Gábor Halmai, and Kim Lane Scheppele, Disabling the Constitution, 23 J Democracy 138, 139–40 (July 2012).
Id at 142.
See Landau, 47 UC Davis L Rev at 208–10 (cited in note 81) (describing how the Fidesz party in Hungary operated by employing a combination of constitutional amendment and constitutional replacement).
In neighboring Poland, the right-wing Law and Justice Party has successfully neutralized the country’s Constitutional Tribunal by amending a series of ordinary laws that change how judges are appointed.89
See Tomasz Tadeusz Koncewicz, Bruised, but Not Dead (Yet): The Polish Constitutional Court Has Spoken (Verfassungsblog, Dec 10, 2015), archived at http://perma.cc/69KK-9PJM(describing a constitutional crisis in which the Polish parliament passed a series of laws affecting the selection of Constitutional Tribunal judges).
See Lis, Kulanu Balks at Likud Demand (cited in note 10) (describing recent attempts by the Israeli government to reduce the supreme court’s power and change the court’s appointment mechanism).
For an overview of the approach the Turkish Constitutional Court has taken on party banning, see Landau, 47 UC Davis L Rev at 220–24 (cited in note 81). See also Aslı Ü. Bâli, The Perils of Judicial Independence: Constitutional Transition and the Turkish Example, 52 Va J Intl L 235, 281 (2012) (noting the Turkish Constitutional Court’s past efforts to dissolve pro-Islamic Parties).
See Yaniv Roznai and Serkan Yolcu, An Unconstitutional Constitutional Amendment—the Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision, 10 Intl J Const L 175, 184–90 (2012) (describing the court’s headscarf decisions).
See Bâli, 52 Va J Intl L at 295–309 (cited in note 91) (describing these reforms and arguing that they do not amount to court packing but rather liberalized the composition of the court).
European Commission for Democracy through Law, Turkey: Opinion on Emergency Decree Laws Nos. 667–676 Adopted following the Failed Coup of 15 July 2016 ¶ 147 at *32 (Dec 12, 2016), archived at http://perma.cc/A6MT-VSS9(discussing the purge of the judiciary).
While court curbing might take different forms, in many of these cases political branches retaliated against courts after periods of sustained judicial activism, whereby popular majorities resist judicially imposed constraints on their power. While we lack a systematic record of all attempts at court curbing, these recent attacks on high-profile courts in new democracies suggest that courts that stand in the way of the political branches may have their wings clipped.
B. Judicial Self-Restraint
TOPCourts also have ways to steer clear of high-profile political confrontations in the first place. First, they can employ avoidance doctrines, such as “passive virtues” in the United States95
See generally Alexander M. Bickel, The Supreme Court 1960 Term—Foreword: The Passive Virtues, 75 Harv L Rev 40 (1961) (describing the judicial tools available to the Supreme Court that enable it to “withhold[ ] ultimate constitutional adjudication”).
For a description of the margin-of-appreciation doctrine and its use by the ECtHR, see Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L J 1, 34–43 (2016).
See Rosalind Dixon and Samuel Issacharoff, Living to Fight Another Day: Judicial Deferral in Defense of Democracy, 2016 Wis L Rev 683, 699 (describing the strategy of deferred judicial review as a means for the court to avoid direct political confrontations).
See Roznai and Yolcu, 10 Intl J Const L at 180–81 (cited in note 92) (noting that “interpretation in conformity with the Constitution,” whereby disputed laws are not ruled unconstitutional but nonetheless contrary to law, has “frequently been applied by German, French, and Italian constitutional courts”); Dixon and Issacharoff, 2016 Wis L Rev at 696–722 (cited in note 97) (describing deferral techniques used by the courts of Canada, Colombia, Germany, India, Indonesia, South Africa, and the United States).
See Chilton, Smirnova, and Versteeg, Constitutional Rights in Action (cited in note 21).
See Yonatan Lupu, Pierre-Hugues Verdier, and Mila Versteeg, The Strength of Weak Review: National Courts, Interpretive Canons, and Human Rights Treaties *25–30 (unpublished manuscript, 2016), archived at http://perma.cc/KV6B-PCGG.
These various forms of self-restraint may allow courts to build legitimacy so that they can occasionally spend their political capital on a particularly egregious violation. In some cases, such self-restraint is built into the constitution. Professor Stephen Gardbaum argued in favor of “weak-form” judicial review, such as the notwithstanding mechanism in Canada, whereby the legislature has the ability to override judicial rulings.101
See Gardbaum, 53 Colum J Transnatl L at 289–90, 292–93 (cited in note 2); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice 25–30 (Cambridge 2013).
Gardbaum, The New Commonwealth Model of Constitutionalism at 26–27 (cited in note 101).
See Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law 227–28, 263–64 (Princeton 2008).
While these various techniques can ensure the independence of courts in the longer run, their usage implies that courts, in many cases, will steer clear from rendering high-profile decisions that enforce constitutional rights.
C. The Majoritarian Character of Courts
TOPInstead of employing doctrinal tools to avoid certain questions, courts can also decide to issue rulings that are largely in line with the preferences of the political branches. Indeed, a large body of research implies that courts alter their behavior strategically in response to their broader political environment.104
See generally Tom S. Clark, The Limits of Judicial Independence (Cambridge 2011).
Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J Pub L 279, 285 (1957).
See Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 999–1000 (1992) (Scalia concurring in part and dissenting in part) (“How upsetting it is, that so many of our citizens . . . think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.”); William H. Rehnquist, Constitutional Law and Public Opinion, 20 Suffolk U L Rev 751, 752 (1986).
See Dahl, 6 J Pub L at 293 (cited in note 105); Michael J. Klarman, Bush v. Gore through the Lens of Constitutional History, 89 Cal L Rev 1721, 1750 (2001) (“On only a relative handful of occasions has the Court interpreted the Constitution in ways opposed by a clear majority of the nation.”).
See Federalist 10 (Madison), in The Federalist 56, 60–61 (cited in note 33).
See Letter from James Madison to Thomas Jefferson (Oct 17, 1788), in Jack N. Rakove, ed, Declaring Rights: A Brief History with Documents 160, 161 (Bedford 1998) (noting that “experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed” and that “[r]epeated violations of these parchment barriers have been committed by overbearing majorities in every State”).
There are different explanations for why court rulings are often majoritarian in nature. One is the possibility of court curbing. A body of political science literature has postulated “that periods of Court curbing are followed by marked periods of judicial deference to legislative preferences.”110
Clark, 53 Am J Polit Sci at 972 (cited in note 80).
See Cushman, 80 Va L Rev at 209 (cited in note 82) (describing the Court-packing scheme and the Court’s response).
See Epstein, Knight, and Shvetsova, 35 L & Society Rev at 127–31 (cited in note 5).
See id.
See id at 136–54.
A second explanation for why courts rule in line with popular preferences is the knowledge that unpopular decisions might be overturned or simply remain unimplemented. Scholars of the US Supreme Court have theorized that when judicial decisions can be overturned through legislation, courts will pick their preferred policy from those policy options that are unlikely to be overturned.115
See Clark, 53 Am J Polit Sci at 972 (cited in note 80); Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 326–28 (Cambridge 2002).
See Manjoj Mate, Public Interest Litigation and the Transformation of the Supreme Court of India, in Kapiszweski, Silverstein, and Kagan, eds, Consequential Courts 262, 265–70 (cited in note 4). In the aftermath, the court positioned itself as a champion of the people, and dramatically expanded access to the court. The Indian Supreme Court appears to have encountered very little backlash, perhaps because its decisions tend to vindicate the preferences of popular majorities. See id at 270–80.
Georg Vanberg, The Politics of Constitutional Review in Germany 170 (Cambridge 2005).
Finally, courts may rule in line with political branches because they share the preferences of those who appointed them. That is, even when courts are fully independent, judges are typically appointed and confirmed by the political branches, who often appoint judges who share their preferences. This likely has a moderating effect on courts’ desire to stand up against the political branches, especially as long as the party that appointed them remains in power. What is more, in a context in which courts are not independent, courts can simply become agents of the executive. To illustrate, the Venezuelan Supreme Court recently issued a ruling that assigned the congress’s power to the court itself, thereby effectively stifling opposition against the executive.118
See Andrew Rosati, Venezuela Lurches toward Dictatorship as Top Court Seizes Power (Bloomberg, Mar 30, 2017), online at http://www.bloomberg.com/news/articles/2017-03-30/venezuela-s-supreme-court-takes-over-national-assembly-duties(visited Oct 9, 2017) (Perma archive unavailable).
D. Institutional Limitations
TOPCourts are also institutionally ill equipped to deal with certain types of rights violations. Importantly, courts are unable to continuously monitor behavior, and instead depend on certain cases to reach the court. One type of rights violation that is unlikely to reach the court is torture. Torture tends to take place in secret, behind closed doors, and in violation of existing legal norms. Although there are occasional attempts to create a legal space for torture—as in the infamous US torture memos119
The memoranda drafted by the Department of Justice’s Office of Legal Counsel in support of the CIA’s interrogation program can be found in David Cole, ed, The Torture Memos: Rationalizing the Unthinkable (New Press 2009).
See Jeremy Waldron, Torture, Terror, and Trade-Offs: Philosophy for the White House 248 (Oxford 2010) (discussing William Blackstone, who famously observed that the use of the rack in Tudor times was used “as an engine of state” but “not of law”).
See Yonatan Lupu, Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements, 67 Intl Org 469, 477–79 (2013) (noting that courts have difficulty enforcing violations of personal-integrity rights, such as torture, because such violations often occur in situations in which the government can easily hide or destroy evidence).
Some have suggested that courts are also institutionally ill equipped to enforce social rights, such as the right to education or the right to healthcare.122
See Helen Hershkoff, Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings, in Varun Gauri and Daniel M. Brinks, eds, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World 268, 268–69 (Cambridge 2008).
See Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa *13–14 (John M. Olin Law & Economics Working Paper No 124, Mar 7, 2001), archived at http://perma.cc/RD7N-U8M9.
For an example of the South African Constitutional Court applying this approach, see Government of the Republic of South Africa v Grootboom, [2001] 1 S Afr 46, 86 at ¶¶ 93–96 (CC). The South African Constitutional Court’s approach has been celebrated by scholars. See Cass R. Sunstein, Designing Democracy: What Constitutions Do 221–29 (Oxford 2001); Tushnet, Weak Courts, Strong Rights at 242–47 (cited in note 103). This approach, however, appears to be confined to South Africa and has not been widely followed by other courts. See Landau, 53 Harv Intl L J at 199 (cited in note 60) (noting that the South African approach has “not been used anywhere else”).
See Landau, 53 Harv Intl L J at 192, 230–32 (cited in note 60) (describing the “individualized model” whereby “courts give a single remedy to a single plaintiff for provision of a treatment, pension, or subsidy, but tend to deny systematic remedies that would affect larger groups”).
See id at 205–16 (describing the aggressive use of tutelas—“complaints allowing citizens harmed by government . . . actions in violation of their constitutional rights to bring a suit”—in the Colombian legal system).
See id at 232–35.
See id at 233–34.
See Landau, 53 Harv Intl L J at 201–03 (cited in note 60).
We develop this point further in our book manuscript. See generally Chilton and Versteeg, From Parchment to Barriers (cited in note 21).
Conclusion
TOPThe data we presented suggest that constitutional courts are less impactful than is commonly believed. Of course, our findings leave many questions unanswered. Probably the most pressing among them is: If not primarily through constitutional courts, how should we enforce constitutional rights?
We have argued elsewhere that constitutional-rights provisions need to be self-enforcing to be effective. That is, they need to be supplemented by protective constituencies that have a stake in preserving these rights and that can make it costly for a government to violate rights.131
See Paul Pierson, When Effect Becomes Cause: Policy Feedback and Political Change, 45 World Polit 595, 598–600 (1993) (describing the effect of policy feedback on the formation of interest groups).
Indeed, one possibility raised by our analysis is that the enforcement of judicial decisions itself depends on the existence of protective constituencies. There is some support for this conjecture in the literature. For example, scholars of the Inter-American Court of Human Rights have observed that the court’s rulings are more likely to be implemented when there are groups that mobilize for their implementation.132
See James L. Cavallaro and Stephanie Erin Brewer, Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court, 102 Am J Intl L 768, 770 (2008).
[2001] 1 S Afr 46 (CC).
[2002] 5 S Afr 721 (CC).
See Kameshni Pillay, Implementation of Grootboom: Implication for the Enforcement of Socio-Economic Rights, 6 L Democracy & Development 255, 274–76 (2002) (describing the difference in outcome in Grootboom and Treatment Action Campaign); Brian Ray, Engaging with Social Rights: Procedure, Participation, and Democracy in South Africa’s Second Wave 59 (Cambridge 2016); Malcolm Langford, Housing Rights Litigation: Grootboom and Beyond, in Malcolm Langford, et al, eds, Socio-economic Rights in South Africa: Symbols or Substance? 187, 204–05 (Cambridge 2014) (“The greater post-judgment outcomes in the TAC case . . . [are] said to be attributed to the primacy of social movements in [that] case.”).
The existence of civil-society groups that push for implementation, then, might be key to courts’ effectively enforcing the constitution. There are other possible factors that could impact the extent to which judicial enforcement of constitutional rights is effective. It is possible that some subset of courts may be better able to protect rights—for example, those situated in long-standing democracies or countries with respect for the rule of law. One important task for future research is to discover under what conditions independent courts are most impactful and the possible drivers of their success.
Appendix
TOPOur primary statistical analysis uses the three-step research design depicted in Figure A.136
This research design is fully described in Chilton and Versteeg, 44 J Legal Stud at 431–34 (cited in note 21). It is based on a design used to study the effectiveness of human-rights treaties introduced in Yonatan Lupu, The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects, 57 Am J Polit Sci 912 (2013).
In Step 2, we match country-year observations that have a given constitutional right to other country-year observations that do not have the specific right. Our matching algorithm uses the ideal point estimates from Step 1, along with the “standard” variables used in the human-rights literature.
In Step 3, we run regressions on the matched datasets. These regressions include variables for whether a country has a given constitutional right and all of the variables included in the matching process. We also include an interaction term between the variables “Constitutional Right” and “Constitutional Court.” This is our variable of interest.
Figure A. Three-Step Research Design
This Appendix presents three versions of our results. In Section A, we present the results using the process described above. In Section B, we present results without preprocessing our data with matching (in other words, we skip Step 2). In Section C, we present results without preprocessing our data with matching while also including country fixed effects. Although we find a positive and statistically significant interaction effect in a couple of specifications, this is not consistent across specifications for a single right. In other words, we do not find consistent evidence that an independent judiciary, equipped with the power of judicial review, is able to strengthen the enforcement of constitutional rights.
A. Baseline Results
TOP| Organizational Rights | Organizational Rights |
| Organizational Rights | Unionization |
| Political Parties | |
| Religion |
| Constitutional Right | |
| Organizational Rights | 0.815*** (0.252) |
| 0.652*** (0.244) | |
| 1.080**(0.423) |
| Constitutional Court | |
| Organizational Rights | 0.148 (0.831) |
| –0.370 (0.616) | |
| — |
| Constitutional Right x Constitutional Court | |
| Organizational Rights | –0.405 (0.941) |
| 0.386 (0.709) | |
| 0.962 (0.632) |
| Probability of Right | |
| Organizational Rights | –0.605* (0.341) |
| 0.558 (0.347) | |
| 0.056 (0.923) |
| Polity | |
| Organizational Rights | 0.124*** (0.341) |
| 0.263*** (0.035) | |
| 0.052 (0.047) |
| GDP per Capita (ln) | |
| Organizational Rights | 0.223* (0.134) |
| 0.223 (0.146) | |
| –0.267 (0.254) |
| Population (ln) | |
| Organizational Rights | –0.270*** (0.087) |
| 0.062 (0.085) | |
| –0.331*** (0.112) |
| Interstate War | |
| Organizational Rights | –0.127 (0.489) |
| –0.446 (0.379) | |
| 0.156 (0.386) |
| Civil War | |
| Organizational Rights | 0.282 (0.468) |
| –0.499 (0.468) | |
| –0.379 (0.672) |
| Civil Society | |
| Organizational Rights | 3.023*** (0.809) |
| 2.901*** (0.540) | |
| 3.276*** (1.212) |
| Regime Durability | |
| Organizational Rights | 0.008* (0.004) |
| 0.014*** (0.006) | |
| 0.014* (0.008) |
| Youth Bulge | |
| Organizational Rights | –0.014 (0.022) |
| –0.008 (0.030) | |
| –0.056 (0.044) |
| Observations | |
| Organizational Rights | 1,426 |
| 1,390 | |
| 482 |
| Organizational Rights | |||
|---|---|---|---|
| Unionization | Political Parties | Religion | |
| Constitutional Right | 0.815*** (0.252) |
0.652*** (0.244) |
1.080**(0.423) |
| Constitutional Court | 0.148 (0.831) |
–0.370 (0.616) |
— |
| Constitutional Right x Constitutional Court | –0.405 (0.941) |
0.386 (0.709) |
0.962 (0.632) |
| Probability of Right | –0.605* (0.341) |
0.558 (0.347) |
0.056 (0.923) |
| Polity | 0.124*** (0.341) |
0.263*** (0.035) |
0.052 (0.047) |
| GDP per Capita (ln) | 0.223* (0.134) |
0.223 (0.146) |
–0.267 (0.254) |
| Population (ln) | –0.270*** (0.087) |
0.062 (0.085) |
–0.331*** (0.112) |
| Interstate War | –0.127 (0.489) |
–0.446 (0.379) |
0.156 (0.386) |
| Civil War | 0.282 (0.468) |
–0.499 (0.468) |
–0.379 (0.672) |
| Civil Society | 3.023*** (0.809) |
2.901*** (0.540) |
3.276*** (1.212) |
| Regime Durability | 0.008* (0.004) |
0.014*** (0.006) |
0.014* (0.008) |
| Youth Bulge | –0.014 (0.022) |
–0.008 (0.030) |
–0.056 (0.044) |
| Observations | 1,426 | 1,390 | 482 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant and year fixed effects; however, we omit them from the table. A variable is omitted because it is collinear with the interactional between Constitutional Court and Constitutional Right.
| Individual Rights | Individual Rights |
| Individual Rights | Gender Equality |
| Torture | |
| Expression | |
| Movement |
| Constitutional Right | |
| Individual Rights | –0.781 (1.046) |
| –0.288* (0.160) | |
| 0.236 (0.537) | |
| 0.252 (0.344) |
| Constitutional Court | |
| Individual Rights | –1.721 (2.681) |
| –0.247 (0.238) | |
| — | |
| 13.946*** (0.913) |
| Constitutional Right x Constitutional Court | |
| Individual Rights | –1.761 (3.034) |
| 0.481 (0.293) | |
| –1.603 (2.114) | |
| –13.066*** (1.090) |
| Probability of Right | |
| Individual Rights | 4.260*** (1.591) |
| –0.114 (0.168) | |
| –0.198 (1.059) | |
| 0.493 (0.380) |
| Polity | |
| Individual Rights | 0.357*** (0.108) |
| 0.028* (0.016) | |
| 0.151 (0.097) | |
| 0.224*** (0.048) |
| GDP per Capita (ln) | |
| Individual Rights | –0.445 (0.637) |
| 0.197** (0.076) | |
| –0.025 (0.273) | |
| 0.678*** (0.176) |
| Population (ln) | |
| Individual Rights | –0.792 (0.501) |
| –0.239*** (0.061) | |
| –0.085 (0.209) | |
| –0.766*** (0.126) |
| Interstate War | |
| Individual Rights | 0.320 (1.164) |
| –1.009*** (0.192) | |
| 0.453 (0.677) | |
| –0.574 (0.419) |
| Civil War | |
| Individual Rights | –1.054 (1.281) |
| –0.472*** (0.171) | |
| –0.445 (0.479) | |
| 0.409 (0.666) |
| Civil Society | |
| Individual Rights | 0.442 (2.230) |
| 1.429*** (0.335) | |
| 4.236*** (1.165) | |
| 0.199 (0.976) |
| Regime Durability | |
| Individual Rights | 0.016 (0.018) |
| 0.007** (0.003) | |
| 0.007 (0.014) | |
| –0.010 (0.007) |
| Youth Bulge | |
| Individual Rights | –0.604*** (0.133) |
| –0.048*** (0.015) | |
| –0.119* (0.063) | |
| 0.060* (0.032) |
| Observations | |
| Individual Rights | 954 |
| 1,126 | |
| 204 | |
| 812 |
| Individual Rights | ||||
|---|---|---|---|---|
| Gender Equality | Torture | Expression | Movement | |
| Constitutional Right | –0.781 (1.046) |
–0.288* (0.160) |
0.236 (0.537) |
0.252 (0.344) |
| Constitutional Court | –1.721 (2.681) |
–0.247 (0.238) |
— | 13.946*** (0.913) |
| Constitutional Right x Constitutional Court | –1.761 (3.034) |
0.481 (0.293) |
–1.603 (2.114) |
–13.066*** (1.090) |
| Probability of Right | 4.260*** (1.591) |
–0.114 (0.168) |
–0.198 (1.059) |
0.493 (0.380) |
| Polity | 0.357*** (0.108) |
0.028* (0.016) |
0.151 (0.097) |
0.224*** (0.048) |
| GDP per Capita (ln) | –0.445 (0.637) |
0.197** (0.076) |
–0.025 (0.273) |
0.678*** (0.176) |
| Population (ln) | –0.792 (0.501) |
–0.239*** (0.061) |
–0.085 (0.209) |
–0.766*** (0.126) |
| Interstate War | 0.320 (1.164) |
–1.009*** (0.192) |
0.453 (0.677) |
–0.574 (0.419) |
| Civil War | –1.054 (1.281) |
–0.472*** (0.171) |
–0.445 (0.479) |
0.409 (0.666) |
| Civil Society | 0.442 (2.230) |
1.429*** (0.335) |
4.236*** (1.165) |
0.199 (0.976) |
| Regime Durability | 0.016 (0.018) |
0.007** (0.003) |
0.007 (0.014) |
–0.010 (0.007) |
| Youth Bulge | –0.604*** (0.133) |
–0.048*** (0.015) |
–0.119* (0.063) |
0.060* (0.032) |
| Observations | 954 | 1,126 | 204 | 812 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant and year fixed effects; however, we omit them from the table. A variable is omitted because it is collinear with the interactional between Constitutional Court and Constitutional Right.
| Socioeconomic Rights | Socioeconomic Rights |
| Socioeconomic Rights | Education |
| Healthcare |
| Constitutional Right | |
| Socioeconomic Rights | –0.002 (0.113) |
| –0.026 (0.065) |
| Constitutional Court | |
| Socioeconomic Rights | –0.125 (0.250) |
| 0.352 (0.564) |
| Constitutional Right x Constitutional Court | |
| Socioeconomic Rights | 0.007 (0.325) |
| –0.465 (0.560) |
| Probability of Right | |
| Socioeconomic Rights | –0.075 (0.112) |
| –0.004 (0.098) |
| Polity | |
| Socioeconomic Rights | 0.026*** (0.009) |
| 0.011 (0.007) |
| GDP per Capita (ln) | |
| Socioeconomic Rights | 0.189*** (0.069) |
| 0.107 (0.074) |
| Interstate War | |
| Socioeconomic Rights | 0.330 (0.234) |
| –0.197 (0.125) |
| Civil War | |
| Socioeconomic Rights | –0.837 (0.575) |
| –0.005 (0.123) |
| Urban Population | |
| Socioeconomic Rights | –0.008*** (0.003) |
| –0.001 (0.002) |
| Population over 65 | |
| Socioeconomic Rights | –0.010 (0.013) |
| 0.037** (0.015) |
| Inflation | |
| Socioeconomic Rights | –0.002*** (0.001) |
| –0.000*** (0.000) |
| GDP Growth | |
| Socioeconomic Rights | –0.029*** (0.010) |
| –0.011*** (0.003) |
| Spending t–1 | |
| Socioeconomic Rights | 0.899*** (0.031) |
| 0.833*** (0.075) |
| Observations | |
| Socioeconomic Rights | 188 |
| 472 |
| Socioeconomic Rights | ||
|---|---|---|
| Education | Healthcare | |
| Constitutional Right | –0.002 (0.113) |
–0.026 (0.065) |
| Constitutional Court | –0.125 (0.250) |
0.352 (0.564) |
| Constitutional Right x Constitutional Court | 0.007 (0.325) |
–0.465 (0.560) |
| Probability of Right | –0.075 (0.112) |
–0.004 (0.098) |
| Polity | 0.026*** (0.009) |
0.011 (0.007) |
| GDP per Capita (ln) | 0.189*** (0.069) |
0.107 (0.074) |
| Interstate War | 0.330 (0.234) |
–0.197 (0.125) |
| Civil War | –0.837 (0.575) |
–0.005 (0.123) |
| Urban Population | –0.008*** (0.003) |
–0.001 (0.002) |
| Population over 65 | –0.010 (0.013) |
0.037** (0.015) |
| Inflation | –0.002*** (0.001) |
–0.000*** (0.000) |
| GDP Growth | –0.029*** (0.010) |
–0.011*** (0.003) |
| Spending t–1 | 0.899*** (0.031) |
0.833*** (0.075) |
| Observations | 188 | 472 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant and year fixed effects; however, we omit them from the table.
B. Without Matching
TOP| Organizational Rights | Organizational Rights |
| Organizational Rights | Unionization |
| Political Parties | |
| Religion |
| Constitutional Right | |
| Organizational Rights | 0.919*** (0.276) |
| 0.431** (0.201) | |
| 1.383*** (0.459) |
| Constitutional Court | |
| Organizational Rights | 0.880* (0.462) |
| 0.515** (0.254) | |
| –0.719 (0.619) |
| Constitutional Right x Constitutional Court | |
| Organizational Rights | –0.501 (0.490) |
| –0.048 (0.312) | |
| 1.460** (0.648) |
| Probability of Right | |
| Organizational Rights | –0.409 (0.306) |
| 0.236 (0.253) | |
| –0.800 (0.834) |
| Polity | |
| Organizational Rights | 0.090*** (0.020) |
| 0.229*** (0.022) | |
| 0.066*** (0.022) |
| GDP per Capita (ln) | |
| Organizational Rights | 0.036 (0.095) |
| 0.177* (0.090) | |
| 0.091 (0.095) |
| Population (ln) | |
| Organizational Rights | –0.176*** (0.058) |
| –0.018 (0.049) | |
| –0.269*** (0.057) |
| Interstate War | |
| Organizational Rights | –0.230 (0.332) |
| –0.143 (0.272) | |
| 0.031 (0.268) |
| Civil War | |
| Organizational Rights | –0.239 (0.301) |
| –0.552 (0.497) | |
| –0.577* (0.350) |
| Civil Society | |
| Organizational Rights | 3.065*** (0.471) |
| 2.572*** (0.472) | |
| 3.146*** (0.458) |
| Regime Durability | |
| Organizational Rights | 0.003 (0.004) |
| 0.012*** (0.003) | |
| 0.009*** (0.003) |
| Youth Bulge | |
| Organizational Rights | –0.038*** (0.014) |
| –0.003 (0.016) | |
| 0.059*** (0.016) |
| Observations | |
| Organizational Rights | 4,763 |
| 4,763 | |
| 5,309 |
| Organizational Rights | |||
|---|---|---|---|
| Unionization | Political Parties | Religion | |
| Constitutional Right | 0.919*** (0.276) |
0.431** (0.201) |
1.383*** (0.459) |
| Constitutional Court | 0.880* (0.462) |
0.515** (0.254) |
–0.719 (0.619) |
| Constitutional Right x Constitutional Court | –0.501 (0.490) |
–0.048 (0.312) |
1.460** (0.648) |
| Probability of Right | –0.409 (0.306) |
0.236 (0.253) |
–0.800 (0.834) |
| Polity | 0.090*** (0.020) |
0.229*** (0.022) |
0.066*** (0.022) |
| GDP per Capita (ln) | 0.036 (0.095) |
0.177* (0.090) |
0.091 (0.095) |
| Population (ln) | –0.176*** (0.058) |
–0.018 (0.049) |
–0.269*** (0.057) |
| Interstate War | –0.230 (0.332) |
–0.143 (0.272) |
0.031 (0.268) |
| Civil War | –0.239 (0.301) |
–0.552 (0.497) |
–0.577* (0.350) |
| Civil Society | 3.065*** (0.471) |
2.572*** (0.472) |
3.146*** (0.458) |
| Regime Durability | 0.003 (0.004) |
0.012*** (0.003) |
0.009*** (0.003) |
| Youth Bulge | –0.038*** (0.014) |
–0.003 (0.016) |
0.059*** (0.016) |
| Observations | 4,763 | 4,763 | 5,309 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant and year fixed effects; however, we omit them from the table.
| Individual Rights | Individual Rights |
| Individual Rights | Gender Equality |
| Torture | |
| Expression | |
| Movement |
| Constitutional Right | |
| Individual Rights | –0.498 (1.024) |
| –0.394** (0.166) | |
| –0.042 (0.324) | |
| –0.038 (0.350) |
| Constitutional Court | |
| Individual Rights | –2.230 (1.484) |
| –0.263 (0.225) | |
| –1.521 (0.928) | |
| 0.405 (0.726) |
| Constitutional Right x Constitutional Court | |
| Individual Rights | 1.230 (1.641) |
| 0.537** (0.226) | |
| 1.874** (0.947) | |
| –0.029 (0.767) |
| Probability of Right | |
| Individual Rights | 3.830*** (1.215) |
| –0.098 (0.163) | |
| 0.198 (0.614) | |
| 0.178 (0.341) |
| Polity | |
| Individual Rights | 0.251*** (0.094) |
| 0.007 (0.011) | |
| 0.138*** (0.018) | |
| 0.132*** (0.025) |
| GDP per Capita (ln) | |
| Individual Rights | 0.108 (0.521) |
| 0.329*** (0.059) | |
| 0.271*** (0.084) | |
| 0.414*** (0.138) |
| Population (ln) | |
| Individual Rights | –0.679** (0.331) |
| –0.146*** (0.031) | |
| –0.120** (0.051) | |
| –0.184** (0.072) |
| Interstate War | |
| Individual Rights | –0.168 (0.838) |
| –1.031*** (0.145) | |
| 0.082 (0.190) | |
| –0.521* (0.295) |
| Civil War | |
| Individual Rights | –1.560* (0.911) |
| –0.540*** (0.130) | |
| –0.434 (0.361) | |
| –0.231 (0.513) |
| Civil Society | |
| Individual Rights | 0.547 (2.102) |
| 1.493*** (0.240) | |
| 3.575*** (0.426) | |
| 1.225** (0.517) |
| Regime Durability | |
| Individual Rights | 0.025** (0.012) |
| 0.007*** (0.003) | |
| 0.006 (0.004) | |
| 0.006 (0.005) |
| Youth Bulge | |
| Individual Rights | –0.437*** (0.080) |
| –0.016** (0.008) | |
| 0.011 (0.015) | |
| 0.017 (0.016) |
| Observations | |
| Individual Rights | 2,679 |
| 5,255 | |
| 4,763 | |
| 5,315 |
| Individual Rights | ||||
|---|---|---|---|---|
| Gender Equality | Torture | Expression | Movement | |
| Constitutional Right | –0.498 (1.024) |
–0.394** (0.166) |
–0.042 (0.324) |
–0.038 (0.350) |
| Constitutional Court | –2.230 (1.484) |
–0.263 (0.225) |
–1.521 (0.928) |
0.405 (0.726) |
| Constitutional Right x Constitutional Court | 1.230 (1.641) |
0.537** (0.226) |
1.874** (0.947) |
–0.029 (0.767) |
| Probability of Right | 3.830*** (1.215) |
–0.098 (0.163) |
0.198 (0.614) |
0.178 (0.341) |
| Polity | 0.251*** (0.094) |
0.007 (0.011) |
0.138*** (0.018) |
0.132*** (0.025) |
| GDP per Capita (ln) | 0.108 (0.521) |
0.329*** (0.059) |
0.271*** (0.084) |
0.414*** (0.138) |
| Population (ln) | –0.679** (0.331) |
–0.146*** (0.031) |
–0.120** (0.051) |
–0.184** (0.072) |
| Interstate War | –0.168 (0.838) |
–1.031*** (0.145) |
0.082 (0.190) |
–0.521* (0.295) |
| Civil War | –1.560* (0.911) |
–0.540*** (0.130) |
–0.434 (0.361) |
–0.231 (0.513) |
| Civil Society | 0.547 (2.102) |
1.493*** (0.240) |
3.575*** (0.426) |
1.225** (0.517) |
| Regime Durability | 0.025** (0.012) |
0.007*** (0.003) |
0.006 (0.004) |
0.006 (0.005) |
| Youth Bulge | –0.437*** (0.080) |
–0.016** (0.008) |
0.011 (0.015) |
0.017 (0.016) |
| Observations | 2,679 | 5,255 | 4,763 | 5,315 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant and year fixed effects; however, we omit them from the table.
| Socioeconomic Rights | Socioeconomic Rights |
| Socioeconomic Rights | Education |
| Healthcare |
| Constitutional Right | |
| Socioeconomic Rights | 0.069 (0.058) |
| 0.006 (0.038) |
| Constitutional Cour | |
| Socioeconomic Rights | 0.036 (0.065) |
| 0.010 (0.052) |
| Constitutional Right x Constitutional Court | |
| Socioeconomic Rights | –0.065 (0.068) |
| 0.065 (0.071) |
| Probability of Right | |
| Socioeconomic Rights | –0.046 (0.044) |
| –0.076* (0.041) |
| Polity | |
| Socioeconomic Rights | 0.001 (0.003) |
| 0.003 (0.002) |
| GDP per Capita (ln) | |
| Socioeconomic Rights | 0.058** (0.028) |
| 0.016 (0.023) |
| Interstate War | |
| Socioeconomic Rights | –0.007 (0.061) |
| –0.028 (0.050) |
| Civil War | |
| Socioeconomic Rights | –0.074 (0.082) |
| –0.060 (0.046) |
| Urban Population | |
| Socioeconomic Rights | –0.001 (0.001) |
| –0.001 (0.001) |
| Population over 65 | |
| Socioeconomic Rights | –0.003 (0.004) |
| 0.016*** (0.004) |
| Inflation | |
| Socioeconomic Rights | –0.000* (0.000) |
| –0.000** (0.000) |
| GDP Growth | |
| Socioeconomic Rights | –0.009** (0.004) |
| –0.012*** (0.004) |
| Spending t–1 | |
| Socioeconomic Rights | 0.946*** (0.013) |
| 0.937*** (0.020) |
| Observations | |
| Socioeconomic Rights | 1,967 |
| 2,885 |
| Socioeconomic Rights | ||
|---|---|---|
| Education | Healthcare | |
| Constitutional Right | 0.069 (0.058) |
0.006 (0.038) |
| Constitutional Cour | 0.036 (0.065) |
0.010 (0.052) |
| Constitutional Right x Constitutional Court | –0.065 (0.068) |
0.065 (0.071) |
| Probability of Right | –0.046 (0.044) |
–0.076* (0.041) |
| Polity | 0.001 (0.003) |
0.003 (0.002) |
| GDP per Capita (ln) | 0.058** (0.028) |
0.016 (0.023) |
| Interstate War | –0.007 (0.061) |
–0.028 (0.050) |
| Civil War | –0.074 (0.082) |
–0.060 (0.046) |
| Urban Population | –0.001 (0.001) |
–0.001 (0.001) |
| Population over 65 | –0.003 (0.004) |
0.016*** (0.004) |
| Inflation | –0.000* (0.000) |
–0.000** (0.000) |
| GDP Growth | –0.009** (0.004) |
–0.012*** (0.004) |
| Spending t–1 | 0.946*** (0.013) |
0.937*** (0.020) |
| Observations | 1,967 | 2,885 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant and year fixed effects; however, we omit them from the table.
C. Without Matching + Country Fixed Effects
TOP| Organizational Rights | Organizational Rights |
| Organizational Rights | Unionization |
| Political Parties | |
| Religion |
| Constitutional Right | |
| Organizational Rights | 0.287*** (0.083) |
| 0.092 (0.057) | |
| 0.550*** (0.132) |
| Constitutional Court | |
| Organizational Rights | 0.230*** (0.087) |
| 0.156*** (0.059) | |
| 0.013 (0.147) |
| Constitutional Right x Constitutional Court | |
| Organizational Rights | –0.096 (0.104) |
| 0.002 (0.078) | |
| 0.170 (0.152) |
| Probability of Right | |
| Organizational Rights | 0.175* (0.103) |
| 0.229*** (0.061) | |
| –0.429*** (0.116) |
| Polity | |
| Organizational Rights | 0.006 (0.007) |
| 0.048*** (0.005) | |
| 0.016*** (0.006) |
| GDP per Capita (ln) | |
| Organizational Rights | –0.002 (0.024) |
| 0.024 (0.025) | |
| –0.011 (0.024) |
| Population (ln) | |
| Organizational Rights | –0.018* (0.010) |
| 0.009 (0.012) | |
| 0.010 (0.009) |
| Interstate War | |
| Organizational Rights | 0.026 (0.073) |
| –0.102 (0.062) | |
| –0.015 (0.079) |
| Civil War | |
| Organizational Rights | 0.009 (0.063) |
| –0.041 (0.072) | |
| 0.087 (0.095) |
| Civil Society | |
| Organizational Rights | 0.579*** (0.148) |
| 0.404*** (0.099) | |
| 0.485*** (0.124) |
| Regime Durability | |
| Organizational Rights | –0.002 (0.001) |
| 0.001 (0.001) | |
| –0.000 (0.001) |
| Youth Bulge | |
| Organizational Rights | 0.004 (0.005) |
| 0.001 (0.004) | |
| –0.001 (0.004) |
| Observations | |
| Organizational Rights | 4,763 |
| 4,763 | |
| 5,309 |
| Organizational Rights | |||
|---|---|---|---|
| Unionization | Political Parties | Religion | |
| Constitutional Right | 0.287*** (0.083) |
0.092 (0.057) |
0.550*** (0.132) |
| Constitutional Court | 0.230*** (0.087) |
0.156*** (0.059) |
0.013 (0.147) |
| Constitutional Right x Constitutional Court | –0.096 (0.104) |
0.002 (0.078) |
0.170 (0.152) |
| Probability of Right | 0.175* (0.103) |
0.229*** (0.061) |
–0.429*** (0.116) |
| Polity | 0.006 (0.007) |
0.048*** (0.005) |
0.016*** (0.006) |
| GDP per Capita (ln) | –0.002 (0.024) |
0.024 (0.025) |
–0.011 (0.024) |
| Population (ln) | –0.018* (0.010) |
0.009 (0.012) |
0.010 (0.009) |
| Interstate War | 0.026 (0.073) |
–0.102 (0.062) |
–0.015 (0.079) |
| Civil War | 0.009 (0.063) |
–0.041 (0.072) |
0.087 (0.095) |
| Civil Society | 0.579*** (0.148) |
0.404*** (0.099) |
0.485*** (0.124) |
| Regime Durability | –0.002 (0.001) |
0.001 (0.001) |
–0.000 (0.001) |
| Youth Bulge | 0.004 (0.005) |
0.001 (0.004) |
–0.001 (0.004) |
| Observations | 4,763 | 4,763 | 5,309 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant, year fixed effects, and country fixed effects; however, we omit them from the table.
| Individual Rights | Individual Rights |
| Individual Rights | Gender Equality |
| Torture | |
| Expression | |
| Movement |
| Constitutional Right | |
| Individual Rights | 0.761 (0.595) |
| –0.230* (0.133) | |
| 0.159 (0.169) | |
| 0.142 (0.172) |
| Constitutional Court | |
| Individual Rights | 0.504 (0.513) |
| –0.032 (0.140) | |
| 0.095 (0.095) | |
| 0.150** (0.075) |
| Constitutional Right x Constitutional Court | |
| Individual Rights | –0.317 (0.625) |
| 0.264* (0.157) | |
| 0.009 (0.104) | |
| –0.067 (0.091) |
| Probability of Right | |
| Individual Rights | 4.286*** (1.296) |
| 0.163 (0.122) | |
| 0.016 (0.156) | |
| –0.025 (0.135) |
| Polity | |
| Individual Rights | –0.016 (0.061) |
| 0.021*** (0.008) | |
| 0.030*** (0.005) | |
| 0.016** (0.007) |
| GDP per Capita (ln) | |
| Individual Rights | 1.252** (0.528) |
| 0.025 (0.030) | |
| 0.014 (0.021) | |
| 0.031 (0.030) |
| Population (ln) | |
| Individual Rights | 0.163 (0.328) |
| 0.011 (0.014) | |
| –0.003 (0.011) | |
| –0.017 (0.015) |
| Interstate War | |
| Individual Rights | –0.809 (0.500) |
| –0.413*** (0.120) | |
| –0.046 (0.047) | |
| –0.125* (0.075) |
| Civil War | |
| Individual Rights | –0.138 (0.506) |
| –0.104 (0.108) | |
| –0.015 (0.063) | |
| 0.027 (0.143) |
| Civil Society | |
| Individual Rights | –1.692 (1.053) |
| 0.623*** (0.157) | |
| 0.429*** (0.110) | |
| 0.256 (0.170) |
| Regime Durability | |
| Individual Rights | 0.011 (0.023) |
| 0.004*** (0.001) | |
| 0.001 (0.001) | |
| 0.000 (0.002) |
| Youth Bulge | |
| Individual Rights | –0.058 (0.059) |
| –0.006 (0.006) | |
| –0.004 (0.004) | |
| –0.008 (0.005) |
| Observations | |
| Individual Rights | 2,679 |
| 5,255 | |
| 4,763 | |
| 5,315 |
| Individual Rights | ||||
|---|---|---|---|---|
| Gender Equality | Torture | Expression | Movement | |
| Constitutional Right | 0.761 (0.595) |
–0.230* (0.133) |
0.159 (0.169) |
0.142 (0.172) |
| Constitutional Court | 0.504 (0.513) |
–0.032 (0.140) |
0.095 (0.095) |
0.150** (0.075) |
| Constitutional Right x Constitutional Court | –0.317 (0.625) |
0.264* (0.157) |
0.009 (0.104) |
–0.067 (0.091) |
| Probability of Right | 4.286*** (1.296) |
0.163 (0.122) |
0.016 (0.156) |
–0.025 (0.135) |
| Polity | –0.016 (0.061) |
0.021*** (0.008) |
0.030*** (0.005) |
0.016** (0.007) |
| GDP per Capita (ln) | 1.252** (0.528) |
0.025 (0.030) |
0.014 (0.021) |
0.031 (0.030) |
| Population (ln) | 0.163 (0.328) |
0.011 (0.014) |
–0.003 (0.011) |
–0.017 (0.015) |
| Interstate War | –0.809 (0.500) |
–0.413*** (0.120) |
–0.046 (0.047) |
–0.125* (0.075) |
| Civil War | –0.138 (0.506) |
–0.104 (0.108) |
–0.015 (0.063) |
0.027 (0.143) |
| Civil Society | –1.692 (1.053) |
0.623*** (0.157) |
0.429*** (0.110) |
0.256 (0.170) |
| Regime Durability | 0.011 (0.023) |
0.004*** (0.001) |
0.001 (0.001) |
0.000 (0.002) |
| Youth Bulge | –0.058 (0.059) |
–0.006 (0.006) |
–0.004 (0.004) |
–0.008 (0.005) |
| Observations | 2,679 | 5,255 | 4,763 | 5,315 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant, year fixed effects, and country fixed effects; however, we omit them from the table.
| Socioeconomic Rights | Socioeconomic Rights |
| Socioeconomic Rights | Education |
| Healthcare |
| Constitutional Right | |
| Socioeconomic Rights | 0.144 (0.126) |
| 0.460** (0.215) |
| Constitutional Court | |
| Socioeconomic Rights | 0.142 (0.134) |
| 0.148 (0.113) |
| Constitutional Right x Constitutional Court | |
| Socioeconomic Rights | –0.158 (0.138) |
| –0.030 (0.137) |
| Probability of Right | |
| Socioeconomic Rights | –0.148 (0.141) |
| –0.504 (0.309) |
| Polity | |
| Socioeconomic Rights | 0.010 (0.007) |
| 0.003 (0.008) |
| GDP per Capita (ln) | |
| Socioeconomic Rights | 0.094* (0.049) |
| 0.040 (0.035) |
| Interstate War | |
| Socioeconomic Rights | 0.113 (0.106) |
| 0.038 (0.078) |
| Civil War | |
| Socioeconomic Rights | 0.014 (0.099) |
| 0.052 (0.092) |
| Urban Population | |
| Socioeconomic Rights | 0.011 (0.007) |
| –0.000 (0.008) |
| Population over 65 | |
| Socioeconomic Rights | –0.018 (0.019) |
| 0.030 (0.027) |
| Inflation | |
| Socioeconomic Rights | –0.000*** (0.000) |
| –0.000 (0.000) |
| GDP Growth | |
| Socioeconomic Rights | –0.013*** (0.005) |
| –0.014*** (0.005) |
| Spending t–1 | |
| Socioeconomic Rights | 0.770*** (0.025) |
| 0.644*** (0.060) |
| Observations | |
| Socioeconomic Rights | 1,967 |
| 2,885 |
| Socioeconomic Rights | ||
|---|---|---|
| Education | Healthcare | |
| Constitutional Right | 0.144 (0.126) |
0.460** (0.215) |
| Constitutional Court | 0.142 (0.134) |
0.148 (0.113) |
| Constitutional Right x Constitutional Court | –0.158 (0.138) |
–0.030 (0.137) |
| Probability of Right | –0.148 (0.141) |
–0.504 (0.309) |
| Polity | 0.010 (0.007) |
0.003 (0.008) |
| GDP per Capita (ln) | 0.094* (0.049) |
0.040 (0.035) |
| Interstate War | 0.113 (0.106) |
0.038 (0.078) |
| Civil War | 0.014 (0.099) |
0.052 (0.092) |
| Urban Population | 0.011 (0.007) |
–0.000 (0.008) |
| Population over 65 | –0.018 (0.019) |
0.030 (0.027) |
| Inflation | –0.000*** (0.000) |
–0.000 (0.000) |
| GDP Growth | –0.013*** (0.005) |
–0.014*** (0.005) |
| Spending t–1 | 0.770*** (0.025) |
0.644*** (0.060) |
| Observations | 1,967 | 2,885 |
Note: *** p < 0.01, ** p < 0.05, * p < 0.1. Robust standard errors are clustered by country in parentheses. All specifications included a constant, year fixed effects, and country fixed effects; however, we omit them from the table.
- 1See Tomasz Tadeusz Koncewicz, Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Self-Defense (I×CONnect, Dec 6, 2015), archived at http://perma.cc/JC8P-QYTG.See also Joanna Fomina and Jacek Kucharczyk, Populism and Protest in Poland, 27 J Democracy 58, 62–63 (Oct 2016).
- 2See Stephen Gardbaum, Are Strong Constitutional Courts Always a Good Thing for New Democracies?, 53 Colum J Transnatl L 285, 295–97 (2015).
- 3See Neil Buckley, Judges Caught in Romania Power Struggle (Fin Times, Aug 7, 2012), online at http://www.ft.com/cms/s/0/113332a2-e0af-11e1-8d0f-00144feab49a.html#axzz40TxNtdGl(visited Aug 29, 2017) (Perma archive unavailable).
- 4See Alexei Trochev, Fragmentation? Defection? Legitimacy? Explaining Judicial Roles in Post-Communist “Colored Revolutions,” in Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan, eds, Consequential Courts: Judicial Roles in Global Perspective 67, 67–68 (Cambridge 2013).
- 5See Lee Epstein, Jack Knight, and Olga Shvetsova, The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government, 35 L & Society Rev 117, 135–37 (2001).
- 6For example, in November 2012, the Sri Lankan parliament successfully impeached the chief justice of the supreme court after the court held that various parts of a government’s controversial bill were inconsistent with the constitution. Accused of misuse of power, the chief justice was removed from her office by the Sri Lankan president who ignored a court of appeals’ decision finding the impeachment process illegal. Other judges received threatening phone calls. See Sri Lanka: New Chief Justice Sworn In (NY Times, Jan 15, 2013), online at http://www.nytimes.com/2013/01/16/world/asia/sri-lanka-new-chief-justice-sworn-in.html(visited Dec 13, 2017) (Perma archive unavailable); Sri Lanka Ruling Party MPs Move to Impeach Top Judge (Express Trib, Nov 1, 2012), archived at http://perma.cc/46ZM-KNEQ;Hafeel Farisz and Dasun Rajapakshe, Appeal Court Judges Get Threatening Calls (Daily Mirror, Jan 8, 2013), archived at http://perma.cc/F4TB-TW7K.
- 7In August 2012, in Egypt, the newly approved constitution reduced the size of the Supreme Constitutional Court from nineteen to eleven members, retaining the ten longest serving members and the chief justice. This was widely viewed as a political move to remove the anti–Muslim Brotherhood justices, including the court’s only female member. See Jeffrey Fleishman and Reem Abdellatif, Egypt President Mohamed Morsi Expands Authority in Power Grab (LA Times, Nov 22, 2012), archived at http://perma.cc/6ALA-43CF;Liliana Mihaila, Why the Reduction in SCC Justices? (Daily News Egypt, Dec 24, 2012), online at http://dailynewsegypt.com/2012/12/24/why-the-reduction-in-scc-justices/(visited Dec 13, 2017) (Perma archive unavailable).
- 8In the mid- to late 1990’s, after repeated clashes between Pakistan’s government and the supreme court, then–Prime Minister Benazir Bhutto “aggressively sought to pack the courts with judges regarded as loyal to her party’s interests—ignoring basic rules concerning qualifications for appointment and seniority-based conventions for elevating judges, and further manipulating judicial composition by appointing ad hoc judges and transferring judges between courts.” Anil Kalhan, “Gray Zone” Constitutionalism and the Dilemma of Judicial Independence in Pakistan, 46 Vand J Transnatl L 1, 40 (2013). The current Pakistani prime minister, Nawaz Sharif, “proved no less aggressive, clashing with the Supreme Court over appointments and other issues and later engaging in an ugly effort to remove the chief justice, which culminated in a physical attack on the Supreme Court building by a mob of Sharif’s supporters.” Id.
- 9See Gulsen Solaker, Turkish Judge Defies Erdogan with Attack on ‘Dire’ Allegations (Reuters, Apr 25, 2014), archived at http://perma.cc/8N3V-6W4Q(describing the conflict between then–Prime Minister Recep Tayyip Erdoğan and the constitutional court).
- 10See Jonathan Lis, Kulanu Balks at Likud Demand to Weaken Israel’s Supreme Court (Haaretz, Apr 21, 2015), online at http://www.haaretz.com/israel-news/.premium-1.652811(visited Oct 5, 2017) (Perma archive unavailable) (describing recent attempts by the government to reduce the supreme court’s power and change the court’s appointment mechanism).
- 11See Gardbaum, 53 Colum J Transnatl L at 298 (cited in note 2) (noting that President Jacob Zuma described some of the constitutional court’s judges as “counter revolutionaries” and has asked for a review of the court’s power and an evaluation of whether the court has stood in the way of socioeconomic transformation).
- 12See Carl Schmitt, The Guardian of the Constitution ch I.1–3, in Lars Vinx, ed, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law 79, 79–90 (Cambridge 2015) (Lars Vinx, trans).
- 13See, for example, Stephen Holmes, Precommitment and the Paradox of Democracy, in Jon Elster and Rune Slagstad, eds, Constitutionalism and Democracy: Studies in Rationality and Social Change 195, 236–37 (Cambridge 1988); Daniel A. Farber, Rights as Signals, 31 J Legal Stud 83, 92–93 (2002).
- 14See Richard H. Fallon Jr, The Core of an Uneasy Case for Judicial Review, 121 Harv L Rev 1693, 1728–31 (2008).
- 15See, for example, Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective 7–8 (Chicago 1998) (noting that a “rights revolution” consists of “judicial attention to the new rights, judicial support for the new rights, and implementation of the new rights” whereas implementation is “the extent to which courts have issued a continuing stream of judicial decisions that enforce or elaborate on earlier decisions”); David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment 7 (UBC 2012) (“Because of the prominent role of courts in this process, the rights revolution is closely tied to constitutionalism and the judicialization of politics.”).
- 16See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 21–33 (Cambridge 2003) (“By ensuring that losers in the legislative arena will be able to bring claims to court, judicial review lowers the cost of constitution making and allows drafters to conclude constitutional bargains that would otherwise be unobtainable.”).
- 17See Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts 132–36 (Cambridge 2015).
- 18See, for example, David M. Trubek, The “Rule of Law” in Development Assistance: Past, Present, and Future, in David M. Trubek and Alvaro Santos, eds, The New Law and Economic Development: A Critical Appraisal 74, 74 (Cambridge 2006) (noting that the World Bank has spent $2.9 billion on rule-of-law reforms since 1990).
- 19See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism 1–3 (Harvard 2004) (describing the judicial empowerment that resulted from the “sweeping worldwide convergence to constitutionalism”).
- 20See C. Neal Tate and Torbjörn Vallinder, The Global Expansion of Judicial Power: The Judicialization of Politics, in C. Neal Tate and Torbjörn Vallinder, eds, The Global Expansion of Judicial Power 1, 5–6 (NYU 1995).
- 21See generally Adam S. Chilton and Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am J Polit Sci 575 (2016); Adam S. Chilton and Mila Versteeg, The Failure of Constitutional Torture Prohibitions, 44 J Legal Stud 417 (2015); Adam S. Chilton and Mila Versteeg, International Law, Constitutional Law, and Public Support for Torture, 3 Rsrch & Polit 1 (Jan–Mar 2016); Adam S. Chilton and Mila Versteeg, Rights without Resources: The Impact of Constitutional Social Rights on Social Spending, J L & Econ (forthcoming), archived at http://perma.cc/VV7C-TTGV;Adam S. Chilton, Maria Smirnova, and Mila Versteeg, Constitutional Rights in Action; a Case Study on Religious Freedom in Russia (unpublished manuscript).
- 22See, for example, Chilton and Versteeg, 60 Am J Polit Sci at 584–85 (cited in note 21).
- 23See id.
- 24See id at 582–84.
- 25See id.
- 26Chilton, Smirnova, and Versteeg, Constitutional Rights in Action (cited in note 21).
- 27Similar results will further feature in our forthcoming book manuscript and have partly been featured in our peer-reviewed publications.
- 28See Jack Goldsmith and Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv L Rev 1791, 1830–31 (2009) (observing that constitutional scholars rarely ask why the constitution is complied with, and that “[w]hen such questions are raised . . . the answers tend to begin and end with judicial review”).
- 29See id at 1795. See also Gillian K. Hadfield and Barry R. Weingast, Constitutions as Coordinating Devices, in Sebastian Galiani and Itai Sened, eds, Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North 121, 122 (Cambridge 2014); Russell Hardin, Why a Constitution? (“Why a Constitution? (2013)”), in Denis J. Galligan and Mila Versteeg, eds, Social and Political Foundations of Constitutions 51, 53, 65–66 (Cambridge 2013); Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv L Rev 657, 662 (2011); Martin Shapiro, The European Court of Justice: Of Institutions and Democracy, 32 Isr L Rev 3, 8 (1998).
- 30See Goldsmith and Levinson, 122 Harv L Rev at 1795–96 (cited in note 28).
- 31See John Austin, The Province of Jurisprudence Determined 364 (Legal Classics 1984) (originally published 1832) (noting that “without men to enforce them,” constitutions are “merely idle words scribbled on paper or parchment”); Frederick Schauer, The Force of Law 89–92 (Harvard 2015).
- 32See Dieter Grimm, Judicial Activism, in Robert Badinter and Stephen Breyer, eds, Judges in Contemporary Democracy: An International Conversation 17, 26 (NYU 2004) (“It is the specific weakness of constitutional courts that the power is in the hands of those who are affected by their decisions.”).
- 33Federalist 78 (Hamilton), in The Federalist 521, 522–23 (Wesleyan 1961) (Jacob E. Cooke, ed) (deeming the judiciary the “least dangerous” branch).
- 3431 US 515 (1832).
- 35See Richard H. McAdams, The Expressive Powers of Law: Theories and Limits 58 (Harvard 2015).
- 36See, for example, David Easton, A Systems Analysis of Political Life 267–68 (Chicago 1979); David Easton, A Re-assessment of the Concept of Political Support, 5 British J Polit Sci 435, 450–53 (1975); James L. Gibson and Gregory A. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice, 39 Am J Polit Sci 459, 461 (1995); James L. Gibson, Gregory A. Caldeira, and Vanessa A. Baird, On the Legitimacy of National High Courts, 92 Am Polit Sci Rev 343, 344–46 (1998); Richard H. Fallon Jr, Legitimacy and the Constitution, 118 Harv L Rev 1787, 1794–96 (2005). Recent work by Professors Tom Ginsburg and Nuno Garoupa conceptualizes some of these same ideas as judicial reputation. See Nuno Garoupa and Tom Ginsburg, Judicial Reputation: A Comparative Theory 14–23 (Chicago 2015). There is a related strand of research, tracing back to Max Weber, that deals with the legitimacy of law more broadly, which we set aside here. There is also a strand of legitimacy theory that is more normative in character. See generally, for example, Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 Am J Intl L 596 (1999). There are also studies focused on procedural legitimacy. See generally, for example, Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just 283 (2003).
- 37Easton, A Systems Analysis of Political Life at 273 (cited in note 36). See also Easton, 5 British J Polit Sci at 444 (cited in note 36).
- 38This distinction is used by most political science accounts on legitimacy. See, for example, Gibson and Caldeira, 39 Am J Polit Sci at 474–76 (cited in note 36); Gregory A. Caldeira and James L. Gibson, The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support, 89 Am Polit Sci Rev 356, 365–67 (1995); Gibson, Caldeira, and Baird, 92 Am Polit Sci Rev at 348–52 (cited in note 36); Yonatan Lupu, International Judicial Legitimacy: Lessons from National Courts, 14 Theoretical Inquiries L 437, 440–45 (2013).
- 39See Gibson, Caldeira, and Baird, 92 Am Polit Sci Rev at 354–55 (cited in note 36).
- 40See Shapiro, 32 Isr L Rev at 11 (cited in note 29) (suggesting that a court that “consistently favors some of the power holders over others” will not be seen as neutral, which might undermine its success).
- 41See Heinz Klug, Constitutional Authority and Judicial Pragmatism: Politics and Law in the Evolution of South Africa’s Constitutional Court, in Kapiszweski, Silverstein, and Kagan, eds, Consequential Courts 93, 109–12 (cited in note 4).
- 42See Fallon, 118 Harv L Rev at 1840–41 (cited in note 36). See also Philip Bobbitt, Constitutional Fate: Theory of the Constitution 5, 234–35 (Oxford 1982) (suggesting different styles of constitutional argument that can improve legitimacy); Shapiro, 32 Isr L Rev at 9 (cited in note 29).
- 43See Russell Hardin, Liberalism, Constitutionalism, and Democracy 85–140 (Oxford 1999); Russell Hardin, Why a Constitution? (“Why a Constitution? (1989)”), in Bernard Grofman and Donald Wittman, eds, The Federalist Papers and the New Institutionalism 100, 102 (Agathon 1989); Hardin, Why a Constitution? (2013) at 59–62 (cited in note 29).
- 44See Hardin, Why a Constitution? (1989) at 101 (cited in note 43) (noting that a constitution “establishes conventions” that “make it easier for us to cooperate and to coordinate”).
- 45McAdams, The Expressive Powers of Law at 119–35 (cited at note 35).
- 46531 US 98 (2000) (per curiam).
- 47See Hardin, Why a Constitution? (2013) at 57–58 (cited in note 29). Others have explained compliance with this same decision based on the court’s legitimacy. See generally James L. Gibson, Gregory A. Caldeira, and Lester Kenyatta Spence, Why Do People Accept Public Policies They Oppose? Testing Legitimacy Theory with a Survey-Based Experiment, 58 Polit Rsrch Q 187 (2005).
- 48See Levinson, 124 Harv L Rev at 710–11 (cited in note 29).
- 49See Shapiro, 32 Isr L Rev at 22–23 (cited in note 29).
- 50See id at 23 (noting that, unlike for the separation of powers, in the realm of constitutional rights, the “contract does not enforce itself” but courts “must enforce it against powerful, united, majority forces”).
- 51See David S. Law and Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Cal L Rev 1163, 1200–02 (2011) (presenting a list of rights provided by a large majority of constitutions).
- 52See David S. Law, A Theory of Judicial Power and Judicial Review, 97 Georgetown L J 723, 757–59 (2009) (describing court adjudication as a means of avoiding conflict and solving coordination problems).
- 53See Hardin, Why a Constitution? (2013) at 57–58 (cited in note 29).
- 54See Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt 6 (Cambridge 2007). See also Douglass C. North and Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J Econ Hist 803, 816–23 (1989) (suggesting that credible constitutional commitments to protect private property allow governments to access capital).
- 55Shapiro, 32 Isr L Rev at 4–5 (cited in note 29).
- 56See Ginsburg, Judicial Review in New Democracies at 21–33 (cited in note 16).
- 57For a discussion of court curbing, see notes 80–94 and accompanying text.
- 58See Gardbaum, 53 Colum J Transnatl L at 294 (cited in note 2) (characterizing the mood on constitutional courts as “bullish”).
- 59See, for example, Tom Ginsburg, Aziz Z. Huq, and Mila Versteeg, The Coming Demise of Liberal Constitutionalism?, 85 U Chi L Rev 239, 253–54 (2018).
- 60See, for example, David Landau, The Reality of Social Rights Enforcement, 53 Harv Intl L J 189, 192 (2012) (discussing, among other countries, Hungary, South Africa, Colombia, and India).
- 61For a critique on case selection in comparative constitutional law, see generally Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am J Comp L 125 (2005). See also Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law 224–67 (Oxford 2014).
- 62See Epp, The Rights Revolution at 11–20 (cited in note 15).
- 63See, for example, Boyd, The Environmental Rights Revolution at 119–20 (cited in note 15).
- 64See generally Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago 2d ed 2008).
- 65See Landau, 53 Harv Intl L J at 192 (cited in note 60).
- 66See id at 202–03.
- 67See, for example, Rafael La Porta, et al, Judicial Checks and Balances, 112 J Polit Economy 445, 449 (2004).
- 68See, for example, M. Rodwan Abouharb, Laura P. Moyer, and Megan Schmidt, De Facto Judicial Independence and Physical Integrity Rights, 12 J Hum Rts 367, 383 (2013) (finding that higher levels of judicial independence are “associated with improved government respect for physical integrity rights”); Charles Crabtree and Michael J. Nelson, New Evidence for a Positive Relationship between De Facto Judicial Independence and State Respect for Empowerment Rights, 61 Intl Stud Q 210, 217 (2017) (finding that an independent judiciary is associated with the protection of “empowerment rights”); Frank B. Cross, The Relevance of Law in Human Rights Protection, 19 Intl Rev L & Econ 87, 94–96 (1999) (finding that judicial independence is associated with greater political rights and protection against unreasonable search and seizure); Linda Camp Keith, Judicial Independence and Human Rights Protection around the World, 85 Judicature 195, 200 (2002) (finding that some formal constitutional guarantees for judicial independence are associated with better rights protections); Linda Camp Keith, C. Neal Tate, and Steven C. Poe, Is the Law a Mere Parchment Barrier to Rights Abuse?, 71 J Polit 644, 658 (2009) (finding that “pursuing better human rights through constitutional law making” can lead to better human-rights outcomes); Emilia Justyna Powell and Jeffrey K. Staton, Domestic Judicial Institutions and Human Rights Treaty Violation, 53 Intl Stud Q 149, 167 (2009) (finding that effective legal systems are associated with lower rates of human-rights abuse). But see Courtenay Ryals Conrad and Will H. Moore, What Stops the Torture?, 54 Am J Polit Sci 459, 464 (2010) (finding that judicial independence does not increase the probability that a “torture spell” will end).
- 69See North and Weingast, 49 J Econ Hist at 815–19 (cited in note 54).
- 70See Cross, 19 Intl Rev L & Econ at 96 (cited in note 68). Cross did find, however, that judicial independence was more impactful in countries without constitutional protections. Id at 96–97.
- 71See James Melton, Do Constitutional Rights Matter? *23–24 (unpublished manuscript, Sept 16, 2014), archived at http://perma.cc/YGY2-GS8L.
- 72See Crabtree and Nelson, 61 Intl Stud Q at 221 (cited in note 68) (Table 7).
- 73See, for example, Chilton and Versteeg, 60 Am J Polit Sci at 580 (cited in note 21) (using the CIRI data set, which uses data from US State Department reports, to score countries’ de facto human-rights practices); Chilton and Versteeg, 44 J Legal Stud at 424–25 (cited in note 21) (using the CIRI data set, which uses data from US State Department and Amnesty International reports, to score countries’ torture practices); Chilton and Versteeg, Rights without Resources at *12 (cited in note 21).
- 74See Appendix A.
- 75See Chilton and Versteeg, 60 Am J Polit Sci at 577–79 (cited in note 21).
- 76The CIRI data on judicial review is based primarily on the US State Department’s assessment of judicial independence around the world. We code countries as having “Independent Judicial Review” if they score “2” for the CIRI measure injud.
- 77We coded these data ourselves. For an exploration of what constitutes judicial review of constitutions, see Tom Ginsburg and Mila Versteeg, Why Do Countries Adopt Constitutional Review?, 30 J L, Econ & Org 587, 600–02 (2014). We added Israel and the United States as having judicial review even though the Israeli constitution is ambiguous and the US Constitution contains no explicit reference to constitutional review.
- 78See Appendix A.
- 79See Martin Shapiro, Courts: A Comparative and Political Analysis 34 (Chicago 1981) (noting that “lawmaking and judicial independence are fundamentally incompatible”).
- 80Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 Am J Polit Sci 971, 972 (2009).
- 81See David Landau, Abusive Constitutionalism, 47 UC Davis L Rev 189, 195–215 (2013) (describing the phenomenon of “abusive constitutionalism,” whereby the tools of constitutional amendment and constitutional replacement are used for undemocratic means, including court curbing).
- 82This episode famously ended with Justice Owen Roberts’s “switch in time” in response to Roosevelt’s Court-packing plan. For a brief history of the Court-packing scheme and an analysis the Court’s response, see Barry Cushman, Rethinking the New Deal Court, 80 Va L Rev 201, 208–29 (1994).
- 83In May 2016, Arizona Governor Doug Ducey, a Republican, signed into law a bill that expanded the Arizona Supreme Court from five to seven members. Arizona’s chief justice objected to the bill, as did Democrats in the state legislature, who accused Ducey and the Republicans of court packing. See Yvonne Wingett Sanchez, ‘Like Blackmail’: Judiciary Gets Money Only If Supreme Court Expands (Ariz Republic, Apr 28, 2016), archived at http://perma.cc/SXA7-XZ4R(quoting a Democratic state representative as saying that “[t]here’s absolutely no caseload reason to add Supreme Court judges, the only reason to do it is so the governor can stack the Supreme Court with his picks”); Yvonne Wingett Sanchez, Gov. Doug Ducey Signs Legislation to Expand Arizona Supreme Court (Ariz Republic, May 18, 2016), archived at http://perma.cc/58MR-ZQVF.The same story played out in Georgia that year, where the Republican-controlled state legislature passed a bill that expanded the Georgia Supreme Court from seven to nine members. Georgia Republicans offered the same rationale as their Arizona counterparts—an ability to handle an enlarged caseload in a growing state—and Democrats in the state also accused the GOP of court packing. See Kristina Torres, Expansion of Georgia’s Supreme Court Wins Final Approval (Atlanta Journal-Constitution, Mar 22, 2016), archived at http://perma.cc/X986-TXRU.Similar efforts have been made in Florida, South Carolina, North Carolina, and Iowa. See Russell Berman, Arizona Republicans Try to Bring Back Court-Packing (The Atlantic, May 10, 2016), archived at http://perma.cc/AG7F-KXDR.
- 84Kim Lane Scheppele, Democracy by Judiciary. Or, Why Courts Can Be More Democratic than Parliaments, in Adam Czarnota, Martin Krygier, and Wojciech Sadurski, eds, Rethinking the Rule of Law after Communism 25, 44 (CEU 2005).
- 85See Gardbaum 53 Colum J Transnatl L at 295–96 (cited in note 2).
- 86See Miklós Bánkuti, Gábor Halmai, and Kim Lane Scheppele, Disabling the Constitution, 23 J Democracy 138, 139–40 (July 2012).
- 87Id at 142.
- 88See Landau, 47 UC Davis L Rev at 208–10 (cited in note 81) (describing how the Fidesz party in Hungary operated by employing a combination of constitutional amendment and constitutional replacement).
- 89See Tomasz Tadeusz Koncewicz, Bruised, but Not Dead (Yet): The Polish Constitutional Court Has Spoken (Verfassungsblog, Dec 10, 2015), archived at http://perma.cc/69KK-9PJM(describing a constitutional crisis in which the Polish parliament passed a series of laws affecting the selection of Constitutional Tribunal judges).
- 90See Lis, Kulanu Balks at Likud Demand (cited in note 10) (describing recent attempts by the Israeli government to reduce the supreme court’s power and change the court’s appointment mechanism).
- 91For an overview of the approach the Turkish Constitutional Court has taken on party banning, see Landau, 47 UC Davis L Rev at 220–24 (cited in note 81). See also Aslı Ü. Bâli, The Perils of Judicial Independence: Constitutional Transition and the Turkish Example, 52 Va J Intl L 235, 281 (2012) (noting the Turkish Constitutional Court’s past efforts to dissolve pro-Islamic Parties).
- 92See Yaniv Roznai and Serkan Yolcu, An Unconstitutional Constitutional Amendment—the Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision, 10 Intl J Const L 175, 184–90 (2012) (describing the court’s headscarf decisions).
- 93See Bâli, 52 Va J Intl L at 295–309 (cited in note 91) (describing these reforms and arguing that they do not amount to court packing but rather liberalized the composition of the court).
- 94European Commission for Democracy through Law, Turkey: Opinion on Emergency Decree Laws Nos. 667–676 Adopted following the Failed Coup of 15 July 2016 ¶ 147 at *32 (Dec 12, 2016), archived at http://perma.cc/A6MT-VSS9(discussing the purge of the judiciary).
- 95See generally Alexander M. Bickel, The Supreme Court 1960 Term—Foreword: The Passive Virtues, 75 Harv L Rev 40 (1961) (describing the judicial tools available to the Supreme Court that enable it to “withhold[ ] ultimate constitutional adjudication”).
- 96For a description of the margin-of-appreciation doctrine and its use by the ECtHR, see Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L J 1, 34–43 (2016).
- 97See Rosalind Dixon and Samuel Issacharoff, Living to Fight Another Day: Judicial Deferral in Defense of Democracy, 2016 Wis L Rev 683, 699 (describing the strategy of deferred judicial review as a means for the court to avoid direct political confrontations).
- 98See Roznai and Yolcu, 10 Intl J Const L at 180–81 (cited in note 92) (noting that “interpretation in conformity with the Constitution,” whereby disputed laws are not ruled unconstitutional but nonetheless contrary to law, has “frequently been applied by German, French, and Italian constitutional courts”); Dixon and Issacharoff, 2016 Wis L Rev at 696–722 (cited in note 97) (describing deferral techniques used by the courts of Canada, Colombia, Germany, India, Indonesia, South Africa, and the United States).
- 99See Chilton, Smirnova, and Versteeg, Constitutional Rights in Action (cited in note 21).
- 100See Yonatan Lupu, Pierre-Hugues Verdier, and Mila Versteeg, The Strength of Weak Review: National Courts, Interpretive Canons, and Human Rights Treaties *25–30 (unpublished manuscript, 2016), archived at http://perma.cc/KV6B-PCGG.
- 101See Gardbaum, 53 Colum J Transnatl L at 289–90, 292–93 (cited in note 2); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice 25–30 (Cambridge 2013).
- 102Gardbaum, The New Commonwealth Model of Constitutionalism at 26–27 (cited in note 101).
- 103See Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law 227–28, 263–64 (Princeton 2008).
- 104See generally Tom S. Clark, The Limits of Judicial Independence (Cambridge 2011).
- 105Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J Pub L 279, 285 (1957).
- 106See Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 999–1000 (1992) (Scalia concurring in part and dissenting in part) (“How upsetting it is, that so many of our citizens . . . think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.”); William H. Rehnquist, Constitutional Law and Public Opinion, 20 Suffolk U L Rev 751, 752 (1986).
- 107See Dahl, 6 J Pub L at 293 (cited in note 105); Michael J. Klarman, Bush v. Gore through the Lens of Constitutional History, 89 Cal L Rev 1721, 1750 (2001) (“On only a relative handful of occasions has the Court interpreted the Constitution in ways opposed by a clear majority of the nation.”).
- 108See Federalist 10 (Madison), in The Federalist 56, 60–61 (cited in note 33).
- 109See Letter from James Madison to Thomas Jefferson (Oct 17, 1788), in Jack N. Rakove, ed, Declaring Rights: A Brief History with Documents 160, 161 (Bedford 1998) (noting that “experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed” and that “[r]epeated violations of these parchment barriers have been committed by overbearing majorities in every State”).
- 110Clark, 53 Am J Polit Sci at 972 (cited in note 80).
- 111See Cushman, 80 Va L Rev at 209 (cited in note 82) (describing the Court-packing scheme and the Court’s response).
- 112See Epstein, Knight, and Shvetsova, 35 L & Society Rev at 127–31 (cited in note 5).
- 113See id.
- 114See id at 136–54.
- 115See Clark, 53 Am J Polit Sci at 972 (cited in note 80); Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 326–28 (Cambridge 2002).
- 116See Manjoj Mate, Public Interest Litigation and the Transformation of the Supreme Court of India, in Kapiszweski, Silverstein, and Kagan, eds, Consequential Courts 262, 265–70 (cited in note 4). In the aftermath, the court positioned itself as a champion of the people, and dramatically expanded access to the court. The Indian Supreme Court appears to have encountered very little backlash, perhaps because its decisions tend to vindicate the preferences of popular majorities. See id at 270–80.
- 117Georg Vanberg, The Politics of Constitutional Review in Germany 170 (Cambridge 2005).
- 118See Andrew Rosati, Venezuela Lurches toward Dictatorship as Top Court Seizes Power (Bloomberg, Mar 30, 2017), online at http://www.bloomberg.com/news/articles/2017-03-30/venezuela-s-supreme-court-takes-over-national-assembly-duties(visited Oct 9, 2017) (Perma archive unavailable).
- 119The memoranda drafted by the Department of Justice’s Office of Legal Counsel in support of the CIA’s interrogation program can be found in David Cole, ed, The Torture Memos: Rationalizing the Unthinkable (New Press 2009).
- 120See Jeremy Waldron, Torture, Terror, and Trade-Offs: Philosophy for the White House 248 (Oxford 2010) (discussing William Blackstone, who famously observed that the use of the rack in Tudor times was used “as an engine of state” but “not of law”).
- 121See Yonatan Lupu, Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements, 67 Intl Org 469, 477–79 (2013) (noting that courts have difficulty enforcing violations of personal-integrity rights, such as torture, because such violations often occur in situations in which the government can easily hide or destroy evidence).
- 122See Helen Hershkoff, Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings, in Varun Gauri and Daniel M. Brinks, eds, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World 268, 268–69 (Cambridge 2008).
- 123See Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa *13–14 (John M. Olin Law & Economics Working Paper No 124, Mar 7, 2001), archived at http://perma.cc/RD7N-U8M9.
- 124For an example of the South African Constitutional Court applying this approach, see Government of the Republic of South Africa v Grootboom, [2001] 1 S Afr 46, 86 at ¶¶ 93–96 (CC). The South African Constitutional Court’s approach has been celebrated by scholars. See Cass R. Sunstein, Designing Democracy: What Constitutions Do 221–29 (Oxford 2001); Tushnet, Weak Courts, Strong Rights at 242–47 (cited in note 103). This approach, however, appears to be confined to South Africa and has not been widely followed by other courts. See Landau, 53 Harv Intl L J at 199 (cited in note 60) (noting that the South African approach has “not been used anywhere else”).
- 125See Landau, 53 Harv Intl L J at 192, 230–32 (cited in note 60) (describing the “individualized model” whereby “courts give a single remedy to a single plaintiff for provision of a treatment, pension, or subsidy, but tend to deny systematic remedies that would affect larger groups”).
- 126See id at 205–16 (describing the aggressive use of tutelas—“complaints allowing citizens harmed by government . . . actions in violation of their constitutional rights to bring a suit”—in the Colombian legal system).
- 127See id at 232–35.
- 128See id at 233–34.
- 129See Landau, 53 Harv Intl L J at 201–03 (cited in note 60).
- 130We develop this point further in our book manuscript. See generally Chilton and Versteeg, From Parchment to Barriers (cited in note 21).
- 131See Paul Pierson, When Effect Becomes Cause: Policy Feedback and Political Change, 45 World Polit 595, 598–600 (1993) (describing the effect of policy feedback on the formation of interest groups).
- 132See James L. Cavallaro and Stephanie Erin Brewer, Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court, 102 Am J Intl L 768, 770 (2008).
- 133[2001] 1 S Afr 46 (CC).
- 134[2002] 5 S Afr 721 (CC).
- 135See Kameshni Pillay, Implementation of Grootboom: Implication for the Enforcement of Socio-Economic Rights, 6 L Democracy & Development 255, 274–76 (2002) (describing the difference in outcome in Grootboom and Treatment Action Campaign); Brian Ray, Engaging with Social Rights: Procedure, Participation, and Democracy in South Africa’s Second Wave 59 (Cambridge 2016); Malcolm Langford, Housing Rights Litigation: Grootboom and Beyond, in Malcolm Langford, et al, eds, Socio-economic Rights in South Africa: Symbols or Substance? 187, 204–05 (Cambridge 2014) (“The greater post-judgment outcomes in the TAC case . . . [are] said to be attributed to the primacy of social movements in [that] case.”).
- 136This research design is fully described in Chilton and Versteeg, 44 J Legal Stud at 431–34 (cited in note 21). It is based on a design used to study the effectiveness of human-rights treaties introduced in Yonatan Lupu, The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects, 57 Am J Polit Sci 912 (2013).