UChicago law professor explores whether constitutional rights really make a difference

March 6, 2019

Human rights are often at the forefront of political debate in countries around the world. While many countries emphasize the importance of protecting these rights by way of constitutional amendments, the effectiveness of that practice is often difficult to measure. Adam Chilton, Assistant Professor and Walter Mander Research Scholar in the Law School, attempts to quantify this process in his upcoming book, When Constitutional Rights Matter, which he co-authored with University of Virginia law professor Mila Versteeg. The book, which explores whether the act of constitutionalizing rights actually results in changing government behavior, will be published by Oxford University Press in Fall 2019. 

Chilton and Versteeg focus on eight different rights in the book, broken down into three categories: individual rights (freedom of speech, freedom from torture, freedom of movement); social rights (freedom of education, access to health care); and organizational rights (freedom of religion, freedom to form political parties, freedom to form unions). By analyzing constitutional rights data from every recognized country in the world and completing five in-depth case studies involving international travel and research, the authors concluded that certain constitutional rights tend to be upheld more than others.

“Enforcing constitutional rights is challenging because citizens and groups that are upset with the government need to overcome both coordination and collective action problems,” Chilton said. “People need to first agree that something is a violation of their constitutional rights, and then they need to organize collectively do something about it, whether it be organizing protests or voting current government officials out of office. This can be tough to do, especially for diffuse individuals to pull off. Organizations are key.”

Chilton’s research indicates that the primary way people succeed in enforcing their constitutional rights is by forming organizations like political parties, labor unions, and religious groups. As a result, organizational rights tend to be the easiest for people to enforce. This assertion is supported by various case studies in the book, including an in-depth look at Tunisia’s recent focus on union rights. After the country incorporated additional protection for unions and strike rights into its constitution, there was a dramatic increase in the number of strikes across the country, along with an increase in the number of new unions formed. Conversely, Tunisia continues to have complaints against the government regarding infringements on free speech—several people who have openly criticized the government have been arrested for doing so. Yet because the majority of these allegations have come from individuals rather than organizations, little has been done to support them.

When Constitutional Rights Matter expands on a series of five previous papers authored by Chilton and Versteeg that examine the effectiveness of constitutional rights around the globe. In addition to incorporating the five new case studies into the book, the authors also surveyed constitutional rights law experts from the world and conducted surveys of representative national population samples in the United States and Turkey to determine how shifts in constitutional rights influence public opinion—in summary, just because something is in the constitution doesn’t necessarily mean it changes public opinion.

Ultimately, Chilton hopes the book serves to highlight the most effective ways of enforcing human rights.

“There’s been a move to focus on the formalization of rights protection and on international human rights treaties, which may be important symbolically, but the act of securing formal legal protection isn’t the most successful venue to improve outcomes,” Chilton explained. “Law is not the answer here. Social groups are the answer.”