David S. Law and Mila Versteeg,
101 Cal. L. Rev. 863
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol101/iss4/1
It is often said that constitutions are mere parchment barriersthat cannot by themselves limit the power of the state or guaranteerespect for rights. Little is known at a global and empirical level,however, about the extent to which countries fall short of theirconstitutional guarantees. This Article documents empirically theglobal prevalence and severity of constitutional noncompliance overthe last three decades and identifies the worst offenders, or "shamconstitutions," across several substantive categories.
By matching our own data on the rights-related content of theworld's constitutions with quantitative indicators of actual human rights performance, we calculate numerical scores that capture theextent to which countries violate the rights pledged in theirconstitutions or, conversely, uphold more rights than theirconstitutions contain. These scores are then used to rank countriesaccording to their constitutional "underperformance" or"overperformance." Each country's performance is further analyzedacross three subcategories-namely, personal integrity rights, civiland political freedoms, and socioeconomic and group rights.
The resulting performance scores reveal a number of globaltrends in constitutional compliance. On average, socioeconomic andgroup rights are somewhat less likely to be upheld than the other twovarieties of rights, but the performance gap among the categories isnarrowing over time. Moreover, a country's performance in onecategory tends to only weakly correlate with its performance in othercategories. Relatively few countries fail egregiously to uphold eitherthe positive or the negative rights found in their constitutions.Meanwhile, considerable variation exists in the degree to whichspecific rights are upheld in practice, ranging from 12% compliancewith torture prohibitions to 100% compliance with death penaltyprohibitions.
Constitutional compliance also exhibits strong geographicalpatterns. Countries in Africa and Asia tend to promise a wide rangeof rights in their constitutions but vary greatly in the degree to whichthey satisfy those self-imposed obligations, with the result that thetwo continents are home to a substantial majority of the world'ssham constitutions. These regional patterns persist, moreover, even ifone controls for such variables as wealth and population size.
Finally, statistical analysis identifies a number of variables thattend to predict the degree to which countries underperform on theirconstitutional guarantees. In past decades, the mere inclusion ofsocioeconomic rights in a constitution was associated withunderperformance, but no longer. Wealthy and strongly democraticcountries are relatively more likely to uphold constitutional rights,whereas countries that are afflicted by civil war or promise a largenumber of rights are more likely to fall short. However, neither theexistence of judicial review nor the ratification of human rightstreaties is statistically associated with increased respect forconstitutional rights. Likewise, we find no evidence thatconstitutional clauses that expressly limit the reach of various rightsaffect the extent to which those rights are actually upheld.