It is often said that constitutions are mere parchment barriers that cannot by themselves limit the power of the state or guarantee respect for rights. There has been little or no empirical scholarship, however, on the global prevalence and severity of constitutional noncompliance. This Article offers the first comparative empirical study of the extent to which countries uphold their formal constitutions. Drawing on data that covers the rights-related provisions of every constitution in the world over the last sixty years, we calculate numeric scores that capture the extent to which countries violate their constitutional promises or, conversely, uphold more rights than they promise. These scores are then used to rank countries according to their constitutional underperformance or overperformance.
Having identified both the worst offenders and the best performers, this Article proceeds to address a range of empirical questions about constitutional noncompliance. Each country’s performance is analyzed in three categories: personal integrity rights, civil and political freedoms, and socioeconomic and group rights. We find that, on average, a country’s performance in one category is only weakly correlated with its performance in other categories. Relatively few countries fail egregiously to uphold either the positive or the negative rights found in their constitutions.
Considerable variation exists in the degree to which various formal rights are upheld in practice, ranging from the mere sixteen percent of countries that uphold women’s rights of an economic variety to the eighty-seven percent that respect their constitutional prohibitions against arbitrary arrest and detention. On the whole, socioeconomic and group rights are somewhat more likely to be violated than the other two categories of rights, but the performance gap across the different categories is narrowing over time.
Strong geographical patterns are evident in the distribution of sham constitutions. Countries in Africa and Asia tend to promise a wide range of rights in their constitutions but vary greatly in the extent to which they satisfy those self-imposed obligations, with the result that the two continents are home to a substantial majority of the world’s sham constitutions. These regional patterns persist, moreover, even if one controls via regression analysis for such variables as wealth and population size.
Finally, the Article identifies a number of variables that predict whether a country will be prone to sham constitutionalism. In past decades, the mere inclusion of socioeconomic rights in a constitution was associated with sham constitutionalism, but no longer. Wealthy and strongly democratic countries are relatively more likely to uphold their constitutional guarantees, whereas countries that are afflicted by civil war or promise a large number of rights are more likely to fall short. However, neither the existence of judicial review nor the ratification of human rights treaties is statistically associated with increased respect for constitutional rights. Likewise, we find no evidence that constitutional clauses that expressly limit the reach of various rights affect the extent to which countries actually uphold those rights.
David S. Law and Mila Versteeg. "Sham Constitutions" California Law Review 101 (2013).
Available at: http://works.bepress.com/david_law/29