Research Matters: Adam Chilton on "Do Constitutional Rights Make a Difference?"

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Assistant Professor Adam Chilton wrote “Do Constitutional Rights Make a Difference?” with Mila Versteeg, an associate professor at the University of Virginia School of Law. The August 2014 paper, part of a series at the Law School’s Coase-Sandor Institute for Law and Economics, examined whether a right is better protected in practice if it is included in a country’s constitution. They focused on six political rights: to establish political parties; to strike and/or unionize; to associate and assemble; to religious freedom; to free press/expression; and to free movement.

Q. How did this paper originate?
A. Last year Mila Versteeg was visiting the law school for the fall quarter, and we had a series of conversations about whether we could find a way to empirically test whether the inclusion of a right in a constitution made a country more likely to protect that right later on. Eventually we decided we could use a method that had been developed to empirically test human rights treaties.  

Q. Which rights are most effective, and why?
A. We find that the more a right has to do with collective organizing, the more likely it is to be effective. The rights that are most fundamentally collective—to form political parties and to unionize—are consistently associated with better rights protection in practice. This suggests that organizations, such as political parties or trade unions, are able to help protect the rights and make sure they aren’t cracked down on or eliminated.  In other words, because these rights establish organizations that can protect the right, these rights have a certain self-enforcing quality.  The rights that are least collective—the rights to freedom of movement and freedom of expression—have no consistent relationship with protection. For example, North Korea, in its constitution, has an article that looks very similar to our First Amendment. It says that the country protects the right to freedom of speech and expression. Obviously, they don’t really mean it. A country might include a right to freedom of expression in its constitution, but this might just be cheap talk. Our results suggest that countries are a little more careful about saying there’s a right to political parties and a right to unionize.

Q. Why is this an important issue to study?
A. Constitutions are constantly being rewritten. We see it happening with countries in the Middle East right now. Constitution-makers in these places are trying to figure out what to include and what not to include. They’re frequently given a lot of advice—such as, it’s important to protect freedom of speech or it’s important to protect freedom of religion. But it’s not clear which of those protections actually help to improve people’s lives. It might be the case that, regardless of what’s said in the documents, that governments violate rights anyway. So we wanted to see which constitutional rights actually make a difference.

Q. To what extent had this been studied before?
A. There are a handful papers that have looked at this before, but they all suffer from a few limitations. It’s only in the last few years that there’s been good data on what rights countries include in their constitutions. Also, countries don’t randomly pick which rights to include in their constitutions—there’s a selection bias. Specifically, countries that intend to respect a right in practice might be more likely to include it in their constitution. Not accounting for this kind of bias would be as if you were trying to test whether a cancer drug worked but you only gave the drug to people who were eating well and jogging. The method we use in our paper attempts to account for this. Specifically, our strategy is to find two countries with very similar constitutions, except one doesn’t have the specific right we are studying and the other does. After matching these countries with similar constitutions to each other, we examine whether the country with the constitutional right does a better job protecting that specific right.

Q. Why did you choose these six rights?
A. We wanted a set of rights that are widely used in constitutions, and we wanted rights where there is data available in how well that right is protected.

Q. What is the takeaway?
A. If you want a constitution that ensures freedoms going forward, our results suggest that the best way to do that is to explicitly provide for the protections through groups independent of the government. When organizations—such as independent political parties, trade unions, labor unions, and associations more generally—are allowed to grow and flourish, its possible that they can help check against future government repression.