Enshrining a right in the constitution is no guarantee that a nation will enforce it—but some rights are harder to violate than others, according to a global study conducted by Professor of Law Adam Chilton and a co-author for a new book that builds on years of research into human rights effectiveness.
The surprising difference, they found, has more to do with who is invested in the right, rather than the type of government enforcing it.
In How Constitutional Rights Matter (Oxford University Press, 2020), Chilton and his longtime collaborator Mila Versteeg, a professor at the University of Virginia School of Law, show that both democracies and autocracies are more likely to honor religious freedom, the right to unionize, and the right to form political parties—all of which are practiced within organizations with a vested interest in their protections. At the same time, both regime types are less likely to honor individual rights like freedom of speech or the prohibition against torture, which generally aren’t exercised within organized groups.
“You might think democracies would mean it when they say they won’t torture people, and autocracies would be insincere when they say they respect worker rights,” said Chilton, the Walter Mander Research Scholar and an expert on international law, comparative law, and empirical legal studies. “But instead, it seems like groups are the secret sauce in both democracies and autocracies for rights to make a difference.”
The book is part of an ongoing project by Chilton and Versteeg that uses a variety of research methods to examine how constitutional rights work, including a comprehensive statistical analysis covering 194 countries across six decades. The scholars focus on eight constitutional rights: freedom of speech, prohibition against torture, freedom of movement, the right to education, the right to healthcare, freedom of religion, the right to unionize, and the right to form political parties. To add context and background to their analysis, they also conducted five illustrative case studies across the globe and fielded two survey experiments.
“We had written a series of papers where we essentially tried to test the effect of different constitutional rights empirically, but what we hadn’t done was develop a full theory for how constitutional rights might work,” Chilton said. “To really understand what’s going on, we wanted to get the background on what people who were drafting these constitutions thought, why they may or may not work, and how rights spread. We also wanted to travel to different countries where rights have been under stress and try to understand what, if anything, the rights were doing.”
Among their findings: rights practiced by organizations tend to succeed by overcoming two important roadblocks. First, there is the coordination problem—in order to oppose a rights violation, citizens must agree that said violation exists. Second, assuming citizens agree, they must be able work together to oppose the government. They refer to this obstacle as a collective action problem.
“Imposing political costs on a government can be hard and potentially dangerous work,” Chilton and Versteeg wrote. “Any citizen considering attending a protest march, for example, might be tempted to stay home if marching entails legal or safety risks […] Potential protesters thus need assurance that they will be joined by many others, which is difficult to get for large groups of mostly unconnected citizens.”
In addition to protest, organizations may also succeed in reversing violations through lobbying or litigation—when used strategically by dedicated organizations, they wrote, the constitution can be a powerful instrument.
At the same time, they noted that constitutional rights practiced by organizations are not a cure-all against violations. Leaders are growing increasingly savvy at infringing upon citizens’ rights, they wrote—if anything, organizational rights are not strict safeguards, but are more akin to speedbumps slowing down an often inevitable process.
“If the right is there, and there are social groups that are able to put pressure on the government, that can slow the government down,” Chilton said. “And it might slow the government down enough that they actually stop. Though not always consistently—if there's a powerful government that’s really committed [to violating a right] over an extended period, they seem to eventually win out.”
Chilton and Versteeg offered an example from Russia illustrating how a government can easily ignore an individual right while respecting an organizational one. Shortly after Vladimir Putin was elected president in 2000, the government essentially bought the country’s leading independent television station. As a result, the station, which had previously been critical of Putin, changed its programming entirely. On top of that, new restrictions on extremist speech and reintroduced criminal libel laws gave the government free rein to target speech on the internet. Within a couple of years, the country endured a marked decline in freedom of speech, despite the right existing in the constitution.
At the same time, Chilton and Versteeg, wrote “[N]ot all constitutional rights eroded at the same rate. Relative to free speech, it took much longer for religious freedom to deteriorate.”
When the Russian government proposed a law in 1997 limiting foreign religions’ ability to register and operate, protests by the affected religious groups, armed with the constitution and a Constitutional Court ruling enforcing the freedom of religion provision, helped neutralize its restrictions. Over the next 20 years, religious groups in Russia wielding the nation’s constitution were able to resist a number successive laws attempting to restrict religious activities and funding.
While later government restrictions were more successful, Chilton and Versteeg wrote, “it took two decades for these restrictions to materialize, and to this day, religious groups are better off than civil society at large.”
Looking toward the future, Chilton and Versteeg wrote that in order to protect constitutional rights, citizens ought to invest in formal organizations dedicated to defending those rights. Moreover, Chilton added, when drafting constitutions, individuals should not put their faith in the statement of rights alone.
“There's a lot of emphasis on pushing countries to make the right set of commitments,” Chilton said. “But unfortunately, it looks like getting countries to commit and getting countries to respect the rights are just two different problems. Even though the formal commitment might be important for symbolic reasons, for moral reasons, for ethical reasons, it’s less clear that it’s important for actually changing the life and lived experiences of people in various countries.”