Mila Versteeg

The Evolution and Ideology of Global Constitutionalism

It has become almost universal practice for countries to adopt formal constitutions. Little is known empirically, however, about the evolution of this practice on a global scale. Are constitutions unique and defining statements of national aspiration and identity? Or are they standardized documents that vary only at the margins, in predictable and patterned ways? Are constitutions becoming increasingly similar or dissimilar to one another over time, or is there no discernible overall pattern to their development? Until very recently, scholars have lacked even basic empirical data on the content of the world’s constitutions, much less an understanding of whether there are global patterns to that content.This Article offers the first empirical account of the global evolution of rights constitutionalism. Our analysis of an original data set that spans the rights-related content of all national constitutions over the last six decades confirms the existence of several global constitutional trends. These include the phenomenon of rights creep, wherein constitutions tend to contain an increasing number of rights over time, and the growth of generic rights constitutionalism, wherein an increasing proportion of the world’s constitutions shares an increasing number of rights in common. Perhaps our most striking discovery is that 90% of all variation in the rights-related content of the world’s constitutions can be explained as a function of just two variables. Both of these variables are underlying traits of a constitution that can be measured quantitatively. The first variable is the comprehensiveness of a constitution, which refers simply to the tendency of a constitution to contain a greater or lesser number of rights provisions. The second variable is the ideological character of the constitution. We find empirically that the world’s constitutions can be arrayed along a single ideological dimension. At one end of the spectrum, some constitutions can be characterized as relatively libertarian, in the sense that they epitomize a common law constitutional tradition of negative liberty and, more specifically, judicial protection from detention or bodily harm at the hands of the state. At the other end of the spectrum, by contrast, some constitutions are more statist in character: they both presuppose and enshrine a far-reaching role for the state in a variety of domains by imbuing the state with a broad range of both powers and responsibilities. For every constitution in the world, we calculate a numerical score that measures its position on this ideological spectrum. These scores yield an ideological ranking of the world’s constitutions – the first of its kind.Using these scores, we are able to map the ideological evolution of global constitutionalism. We show that the world’s constitutions are increasingly dividing themselves into two distinct families – one libertarian in character, the other statist. Within each family, constitutions are becoming increasingly similar to one another, but the families themselves are becoming increasingly distinct from one another. The dynamics of constitutional evolution, in other words, involve a combination of ideological convergence and ideological polarization.

Human Rights Violations after 9/11 and the Role of Constitutional Constraints

After 9/11, the United States and its allies took measures to protect their citizens from future terrorist attacks. While these measures aim to increase security, they have often been criticized for violating human rights. But violating rights is difficult in a constitutional democracy with separated powers and checks and balances. This paper empirically investigates the effect of the post-9/11 terror threat on human rights. We find strong evidence of a systematic increase in rights violations in the United States and its ally countries after 9/11. When testing the importance of checks and balances, we find that this increase is significantly smaller in countries with independent judicial review (countermajoritarian checks) but did not depend on the presence of veto players in the legislative branch (majoritarian checks). These findings have important implications for constitutional debates on rights protection in times of emergency.

International law in national legal systems: an empirical investigation

International legal scholars have long recognized the importance of the rules and processes by which states adhere to international legal obligations and “translate” them into their domestic legal systems. Research by political scientists on specific issue areas likewise increasingly recognizes that domestic implementation is crucial to international law compliance and effectiveness. Yet the lack of systematic data makes it difficult to assemble an overall picture of the relationship between international law and domestic law around the world, let alone to document its evolution over time. Recent qualitative surveys of state practice have begun to fill that gap, but provide only a snapshot in time and are limited to relatively few countries. Some quantitative projects cover more countries, but address only a limited number of questions based solely on the text of national constitutions.

Constitutional Variation Among Strains of Authoritarianism

Authoritarian regimes can make surprising constitutional choices. Many adopt sham constitutions packed with rights guarantees that they do not uphold. Others, however, adopt brutally candid constitutions that forthrightly limit or omit a variety of basic rights. The result is a considerable degree of constitutional variation among authoritarian regimes. In this contribution to an edited volume, we find that some of this variation can be explained by distinguishing among different strains of authoritarianism. As an empirical matter, we find that constitutional candor is more common among monarchical and military regimes than civilian or party-based dictatorships. As a theoretical matter, we argue that this pattern reflects the divergent strategic incentives faced by different types of authoritarian regimes.Our empirical analysis compares the constitutional choices of four different types of regimes — democratic regimes, monarchical regimes, military regimes, and civilian or party-based regimes — over the period from 1981 to 2008. Specifically, we estimate a multinomial logit model in which the predictor variable of interest is the type of regime, and the dependent variable is the type of constitution adopted. This regression analysis confirms the existence of statistically significant differences among monarchical, military, and civilian dictatorships that cannot be explained by variables such as economic development, geographic region, or civil war. Even after controlling for such variables, civilian dictatorships are significantly less likely to practice constitutional candor, and more likely to adopt sham constitutions, than either monarchical or military dictatorships. These findings support our hypothesis that authoritarian regimes are rational, self-interested actors that make constitutional choices on the basis of strategic calculations which vary from one type of regime to another. On the one hand, adoption of a sham constitution offers authoritarian rulers a relatively cheap way of appealing ideologically to domestic and international constituencies. On the other hand, adoption of a candid constitution can help authoritarian rulers to resolve a variety of coordination problems. A relatively candid constitution can be useful to an authoritarian regime as a means of allocating power and resolving conflict within the regime, and of generating self-reinforcing popular beliefs about the ubiquity of government control and the consequences of opposition or dissent. Conversely, a sham constitution can backfire by depriving regime members of a device for overcoming internal coordination problems while simultaneously providing regime opponents with a coordination device of their own. The three types of authoritarian regimes balance the costs and benefits of constitutional candor largely in the manner that we would expect under this hypothesis. Compared to civilian or party-based dictatorships, monarchical regimes enjoy greater historical legitimacy, while military regimes enjoy superior capacity for coercion. These advantages ought to render monarchical and military regimes less dependent than civilian regimes on ideological approval or international acceptance, and more at liberty to adopt unappealingly candid constitutions. By contrast, because civilian regimes are not as well positioned to flout the expectations of domestic and international audiences, they may weigh the costs of constitutional candor more heavily. Consistent with this account, civilian regimes are in fact less prone to constitutional candor than either monarchical or military regimes.

International Law, Constitutional Law, and Public Support for Torture

The human rights movement has spent considerable energy developing and promoting the adoption of both international and domestic legal prohibitions against torture. Empirical scholarship testing the effectiveness of these prohibitions using observational data, however, has produced mixed results. In this paper, we explore one possible mechanism through which these prohibitions may be effective: dampening public support for torture. Specifically, we conducted a survey experiment to explore the impact of international and constitutional law on public support for torture. We found that a bare majority of respondents in our control group support the use of torture, and that presenting respondents with arguments that this practice violates international law or constitutional law did not produce a statistically significant decrease in support. These findings are consistent with prior research suggesting, even in democracies, that legal prohibitions on torture have been ineffective.

Theoretical Perspectives on the Social and Political Foundations of Constitutions

This is the opening essay in a forthcoming collection on the social and political foundations of constitutions. The collection includes both theoretical perspectives on the social and political foundations of constitutions and a series of in-depth case studies of different constitutional systems, including Japan, Ireland, Bulgaria, Nigeria, Romania, Ecuador, Argentina, South Sudan, and Egypt. In this essay, we provide an analysis of different theoretical approaches to the social and political understanding of constitutions: constitutions as expressions of national values; constitutions as transnational values and products of diffusion; constitutions as a product of democratic values and the people; constitutions as manifestations of power; constitutions as social coordination; and constitutions as social contracts. We contrast these theoretical perspectives with the findings from the case studies in the collection, in this way combining the theoretical and the empirical.

Comparative International Law: Framing the Field

At first blush, “comparative international law” might sound like an oxymoron. In principle, international law—at least when it arises from multilateral treaties or general custom—applies equally to all parties or states. As a result, international lawyers often resist emphasizing local, national, or regional approaches due to the field’s aspirations to universality and uniformity. Comparativists, meanwhile, frequently overlook the potential to apply comparative law insights to international law on the basis that “rules which are avowedly universal in character do not lend themselves to comparison.”

Rights Without Resources: The Impact of Constitutional Social Rights on Social Spending

Constitutions around the world have come to protect a growing number of social rights. This constitutionalization of social rights has generally been met with approval from academics, human-rights activists, and policy makers. But despite this widespread support, there is hardly any evidence on whether the inclusion of rights in constitutions changes how governments provide social services to their citizens. We take up this question by studying the effect of adopting the constitutional rights to education and health care on government spending. Using a data set of 196 countries’ constitutional rights and data from the World Development Indicators, we employ a variety of empirical tests to examine if the rights to education and health care are associated with increases in government spending. Our results suggest that the adoption of these social rights is not associated with statistically significant or substantively meaningful increases in government spending on education or health care.

The External Dimensions of Constitutions

Constitutions are traditionally seen as inherently domestic documents, written by the people, for the people, and reflecting the nation’s highest values. Yet, constitutions also have important external dimensions. Constitutions define the territory of the nation. They articulate the requirements for citizenship. They define war-powers, treaty-making powers, and structure foreign affairs. They commonly demand that governments protect nationals that reside abroad. In some cases, they extend protections to foreigners in need, especially when they are seeking admission.In a globalized world, this external face of constitutions is changing, reflecting the technological, political, economic, social and cultural changes that continuously reshape a variety of boundaries and determine their nature and level of permeability. Hence questions arise as to whether national constitutions take account of their impact on strangers, whether they should do so, and if so, how do they accommodate their concerns. Our aim in this Introduction Essay and in this Symposium is to draw attention to the external dimensions of constitutions, to the role constitutions play in the global sphere and, ultimately, to the question of responsibility of constitution drafters and interpreters to the outside world. While constitutions are traditionally understood as domestic documents, their significant and multifarious external dimensions raise moral and perhaps also legal questions about the respect that is due to outsiders and their human entitlement to equal concern and respect. We hope that this Symposium serves as the opening for such a debate also among constitutional lawyers.

Modes of Domestic Incorporation of International Law

While political science scholarship recognizes that the effectiveness of international law often rests on its domestic implementation, relatively little attention has been given to the national legal rules that govern this process. These rules, which govern matters such as treaty-making, how treaties and custom are received and interpreted, and their status vis-a-vis other sources of domestic law, differ substantially across countries and over time. In this paper, we examine these rules and their role in shaping the state’s engagement with international law by allocating authority among political actors and institutions. We incorporate empirical insights from an original dataset, which captures in detail the domestic rules that govern the creation, implementation and interpretation of international law for 101 countries for the period 1815-2013. We contrast our data with existing proxies used in the literature, such as legal traditions, explicit constitutional provisions, and the monist-dualist classification, and show that our dataset offers more fine-grained and precise information on international law’s place in national legal orders.