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

human rights, terrorism, 9/11, checks and balances, constitutions, constitutional courts

The Politics of the Takings Clauses

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain and de facto expropriation risks. This Essay explores two possible explanations for why constitutional restrictions on the power of eminent domain fail to make a difference in practice. The first is that countries adopt disingenuous promises to bolster their international reputation or to attract foreign aid. The second explanation holds that societal disagreements over the desired level of expropriation might be built into the constitution’s design. Such disagreements emerge when a portion of citizens believe they benefit more from expropriation than from the general benefits that flow from secure property rights. This Essay finds empirical support for the second explanation. Specifically, it finds that real-world constitutional property regimes are often riddled with ambiguities. That is, constitutions often include strong procedural and substantive restrictions on the power of eminent domain but also include “fine print” that can undermine those restrictions. This Essay finds that when accounting for such fine print, constitutional restrictions on the power of eminent domain appear to be correlated with reduced expropriation risks. This finding suggests that the effectiveness of takings clauses might depend on the politics surrounding their adoption

Unpopular Constitutionalism

Constitutions are commonly thought to express nations’ highest values. They are often proclaimed in the name of “We the People” and are regarded—by scholars and the general public alike—as an expression of the people’s views and values. This Article shows empirically that this widely held image of constitutions does not correspond with the reality of constitution making around the world. The Article contrasts the constitutional-rights choices of ninety countries between 1981 and 2010 with data from nearly one-half million survey responses on cultural, religious, and social values conducted over the same period. It finds, surprisingly, that in this period, the link between nations’ specific constitutional choices and their citizens’ values has generally been weak or nonexistent. The Article presents additional evidence from an original survey that reveals that, overwhelmingly, people want to enshrine their values in their constitution. Together, these findings suggest that the world’s constitutions are not meaningfully supported by the people they represent and that the global practice of constitution-making can be characterized as an exercise in “unpopular constitutionalism.” The Article attributes this finding to a dilemma that lies at the heart of constitutional design. When constitutions serve as unique and defining statements of national ideals and popular values, they may flout universal human rights norms or well-established principles of constitutional design. On the other hand, when constitutional rules merely reflect sound constitutional design and universal right norms, they may be remote from the people’s values and traditions and therefore fail in practice. The findings suggest that constitution-makers have largely resolved this dilemma in favor of universal rights and ready-made constitutional models, which explains the disconnect from popular values

Unpopular Constitutionalism

Constitutions are commonly thought to express nations’ highest values. They are often proclaimed in the name of “We the People” and are regarded—by scholars and the general public alike—as an expression of the people’s views and values. This Article shows empirically that this widely held image of constitutions does not correspond with the reality of constitution making around the world. The Article contrasts the constitutional-rights choices of ninety countries between 1981 and 2010 with data from nearly one-half million survey responses on cultural, religious, and social values conducted over the same period. It finds, surprisingly, that in this period, the link between nations’ specific constitutional choices and their citizens’ values has generally been weak or nonexistent. The Article presents additional evidence from an original survey that reveals that, overwhelmingly, people want to enshrine their values in their constitution. Together, these findings suggest that the world’s constitutions are not meaningfully supported by the people they represent and that the global practice of constitution-making can be characterized as an exercise in “unpopular constitutionalism.” The Article attributes this finding to a dilemma that lies at the heart of constitutional design. When constitutions serve as unique and defining statements of national ideals and popular values, they may flout universal human rights norms or well-established principles of constitutional design. On the other hand, when constitutional rules merely reflect sound constitutional design and universal right norms, they may be remote from the people’s values and traditions and therefore fail in practice. The findings suggest that constitution-makers have largely resolved this dilemma in favor of universal rights and ready-made constitutional models, which explains the disconnect from popular values

Courts’ Limited Ability to Protect Constitutional Rights

Constitutional scholars have generally put faith in courts’ ability to improve the protection of constitutional rights. While courts have limited means to enforce their own decisions, the literature suggests that their decisions are implemented either when courts enjoy strong legitimacy or when they bring functional benefits to other branches. In this Essay, we call this conventional wisdom into question. We present data suggesting that the existence of independent courts does not increase the probability that governments will respect constitutional rights. We outline four reasons why this might be so. First, courts that too frequently obstruct the political branches face court-curbing measures. Second, courts avoid high-profile clashes with the political branches by employing various avoidance canons or deferral techniques. Third, courts protect themselves by issuing decisions that are mostly in line with majoritarian preferences. Finally, courts are ill equipped to deal with certain types of rights violations like torture and social rights. All these accounts offer a potential explanation for why courts’ ability to enforce constitutional rights is more limited than is commonly believed

The Inefficacy of Constitutional Torture Prohibitions

The prohibition of torture is one of the most emblematic norms of the modern human rights movement, and its prevalence in national constitution has increased steeply in the past three decades. Yet little is known about whether constitutional torture proh