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How Constitutional Rights Matter How Constitutional Rights Matter ADAM CHILTON MILA VERSTEEG 1 3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2020 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging- in- Publication Data Names: Chilton, Adam, author. | Versteeg, Mila, 1983– author. Title: How constitutional rights matter / Adam Chilton, Mila Versteeg. Description: New York : Oxford University Press, 2020. | Includes bibliographical references and index. Identifiers: LCCN 2019037451 (print) | LCCN 2019037452 (ebook) | ISBN 9780190871451 (hardback) | ISBN 9780190871468 (updf) | ISBN 9780190871475 (epub) | ISBN 9780190871482 (online) Subjects: LCSH: Civil rights. | Civil rights—Interpretation and construction. | Constitutional law. Classification: LCC K3240 .C4735 2020 (print) | LCC K3240 (ebook) | DDC 342.08/5–dc23 LC record available at https://lccn.loc.gov/2019037451 LC ebook record available at https://lccn.loc.gov/2019037452 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. Contents Acknowledgments vii 1. Introduction 1 PART I: THEORY, BACKGROUND, AND METHODS 2. The Organizational Basis of Constitutional Rights Protection 25 3. Existing Evidence 59 4. The Rise of Rights Constitutionalism 79 5. Research Methods 97 PART II: INDIVIDUAL RIGHTS 6. Civil and Political Rights: Free Speech, the Prohibition of Torture, and the Freedom of Movement 125 7. Social Rights: The Rights to Education and Healthcare 167 8. Popular Support for Constitutional Rights Violations 207 PART III: ORGANIZATIONAL RIGHTS 9. Freedom of Religion 229 10. Right to Unionize 265 11. Right to Form Political Parties 293 PART IV: CONCLUSION 12. Conclusion 327 vi Contents APPENDIX A1. Summary Statistics and Data Sources 335 A2. Regression Results 339 A3. Conditional Effects: Judicial Independence and Democratization 369 Index 373 Acknowledgments This book has been in the making for a number of years. Our collaboration started at the University of Chicago in 2013. Since then, we have written five dif- ferent papers on the broad topic covered by the book. This book adds a wealth of new materials, but also builds on these prior papers. Because this project spans half a decade, it is difficult to do justice to all those who have contributed to our thinking in so many ways. We first want to thank those who participated in our book workshop at the University of Virginia in January 2018: Matt Blackwell, Sujit Choudhry, Todd Eisenstadt, John Ferejohn, Mike Gilbert, Tom Ginsburg, Jamal Greene, Vicki Jackson, David Law, Yon Lupu, Anne Meng, Gerald Rosenberg, Micah Schwartzman, Paul Stephan, Mark Tushnet, and Pierre Verdier. We also want to thank others who commented on various parts of the manuscript or provided guidance: Caroline Chilton, Ros Dixon, Mauricio Guim, Gillian Hadfield, Ran Hirschl, Richard Holden, William Hubard, Tofigh Maboudi, Anup Malani, Rich Nielsen, Eric Posner, Kyle Rozema, Beth Simmons, and Bartek Woda. Over the years, different versions of this manuscript have been presented at various forums. We want to thank the participants of the faculty workshops at the University of Chicago Law School, the University of Virginia School of Law, Columbia Law School, USC Gould School of Law, the University of Pennsylvania Law School, the University of Haifa Faculty of Law, Radzyner Law School at IDC Herzliya, and the Max Planck Institute for Research on Collective Goods. We also thank participants at various specialty workshops: the Arizona State University Center for Law and Global Affairs Research Colloquium; Berkeley Law School International Law Colloquium; Harvard Law School Public Law Workshop; Hebrew University Public Law Workshop; Loyola University Chicago School of Law International Law Workshop; McGill Political Science Workshop; Northwestern Law School Law and Economics Workshop; Tel Aviv Law and Economics Workshop; UCLA Law & Economics Workshop; University of Chicago Harris School of Public Policy Development Workshop; University of Leiden Diplomacy and Global Affairs Research Seminar; and University of Michigan Donia Human Rights Center Lecture. Finally, we are grateful to partic- ipants at a number of difference conferences: the Conference for Empirical Legal Studies; the Political Economy and Public Law Conference; the Conference on viii Acknowledgments Empirical Legal Studies in Asia; “The Limits of Constitutionalism” Symposium at the University of Chicago Law School; the European Association of Law & Economics Annual Conference; the International Society of Public Law Annual Conference; and the annual Law & Society Conference. We also acknowledge the generous financial support from the Carnegie Foundation, without which this book would not have been possible. Specifically, the Andrew Carnegie Fellowship awarded to Mila allowed us to conduct case studies in five different countries and field survey experiments. We also ac- knowledge financial support from the Bankard Fund for Political Economy at the University of Virginia, from the Baker Scholars fund at the University of Chicago, and from the Deans of our respective law schools, the University of Chicago and the University of Virginia. We are also indebted to some excellent research assistants, who helped us with different parts of the manuscript: Apinop Atipiboonsin, Ian Baize, Patrick Berning-O ’Neill, Kevin Carlson, Victor Cedeno, Christy Crouse, Paul Devamithran, Mauricio Guim, Lisa Fan, Jacob Hamburger, David Hofisi, Allie Hugi, Brigid Larkin, Joseph Ludmir, Alex Macmillan, Billi Jo Morningstar, Monica Norzagaray Pedraza, Franz Oberarzbacher, Patryk Ryszewski, Nathan Tschepik, Alex Viner, Max Wagner, and AJ Wu. We are also grateful for Kent Olson and Benjamin Doherty of the UVA Law Library, who helped us with the many foreign law citations that feature in this book. We also acknowledge the help of different country experts whom we consulted on our case studies and who helped us navigate the countries we researched. Special thanks to David Williams on Myanmar, Adrienne Lebass on Zambia, David Hofisi on Zimbabwe, Maria Smirnova on Russia, Camilo Sanchez on Colombia, Lech Garlicki on Poland, Patryk Ryszewski on Poland, Zaid Al-A li on Tunisa, and Anis Abidi on Tunisia. This book would not exist without the hundred or so judges, civil society lead- ers, trade union activists, religious leaders, and others from around the world who participated in our interviews in Moscow, St. Petersburg, Kazan, Tunis, Warsaw, Yangon, Bogota, Charlottesville, and Chicago. We are most grateful for their time and insights. Finally, we would like to thank our families for all their support in the years we spent researching and writing this book. Most importantly, if it were not for the support of our partners—Mila’s husband, Kevin Cope, and Adam’s wife, Britt Cramer—this would have not been possible. 1 Introduction A. The Erosion of Rights in Russia After the collapse of the Soviet Union in 1991, Russian citizens experienced a dramatic improvement in their civil liberties.1 President Boris Yeltsin devel- oped the nation into a free- market economy through “economic shock therapy,” and opportunities sprang up for private entrepreneurs, media outlets, and civil society organizations alike. For the first time, a major independent television channel (NTV) reported critically on the government. New religious groups flooded the country, and the Russian Orthodox Church started to rebuild after decades of repression. The newfound freedoms were enshrined in Russia’s 1993 Constitution, which included a Western- style bill of rights.2 As one observer noted, “for a second, Russia seemed almost like a normal country, where the ability to criticize and ridicule politicians is a sign of a healthy democracy.”3 The newfound liberties lasted about a decade. By the turn of the millennium, there was a widespread sentiment that the dismantling of the state had gone too far.4 This sentiment gave rise to Vladimir Putin’s election as president in 2000. Days before he took office, Putin released a 5,000-w ord manifesto announcing his vison for restoring the state known as the “Millennium Message.” It argued, among other things, that the new rights were not authentically Russian and that distinctly Russian values— such as “patriotism, collectivism, solidarity,” and der- zhavnost (“the belief that Russia is destined always to be a great power”)— were 1 David E. Hoffman, When Russia Glimpsed Freedom for a Moment, Wash. Post (June 10, 2016), https:// www.washingtonpost.com/ opinions/ when- russia- glimpsed- freedom- for- a- moment/ 2016/ 06/ 09/ 0ba58d8c- 0192- 11e6- b823- 707c79ce3504_ story.html. 2 Anuradha M. Chenoy & Rajan Kumar, Re- emerging Russia: Structures, Institutions and Processes 27 (2017) (“The Russian constitution of 1993, which is fundamentally different from the earlier Soviet constitutions, is modelled on the liberal democratic constitutions of the West”); Marcia A. Weigle, Russia’s Liberal Project: State- Society Relations in the Transition from Communism 411 (2000). However, while the bill of rights is modeled on a Western template, the constitution also has illiberal features such a strong executive. See Chenoy & Kumar, supra, at 38 (“The Russian constitution . . . unduly favours the executive” who is empowered with “wide legislative, executive and emergency powers”); Richard Sakwa, The Struggle for the Constitution in Russia and the Triumph of Ethical Individualism, 48 Stud. in East Eur. Thought 115, 141 (1996) (observing that the “soft authoritarian elements embedded in the constitution could come into con- tradiction with its liberal provisions”). 3 Arkady Ostrovsky, The Invention of Russia 189 (2017). 4 Fiona Hill & Clifford G. Gaddy, Mr. Putin: Operative in the Kremlin 38 (2015). How Constitutional Rights Matter. Adam Chilton & Mila Versteeg, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190871451.001.0001
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