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University of Chicago Law Review

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Abstract

As populist leaders gain power around the world, democratic governments retreat, and authoritarian states gain power in the international system,1 it is critical to find levers of resistance. Professors Adam Chilton and Mila Versteeg’s masterful volume, How Constitutional Rights Matter, offers a timely and provocative answer: let’s look to organizations as potential defenders of rights in challenging times.2 In a world in which human rights are widely understood as individual rights, it is high time to theorize about how organizations can help vindicate these individual protections.

The specific thesis Chilton and Versteeg promote is that “some rights, once constitutionalized, are harder to violate than others.”3 Specifically, freedom of religion, the right to unionize, and the right to form political parties are more likely to survive challenges.4 This is because these rights, which Chilton and Versteeg term “organizational,” have built-in advocates—religious groups, trade unions, and political parties—available to enforce them.5 In contrast, “individual” rights—which include both civil rights such as freedom from torture and social rights such as the right to education—have no built-in advocates, and are thus harder to protect.

Chilton and Versteeg test this theory empirically, with data from hundreds of countries over decades. Their data analysis is a model of transparency. For each right, they compare, in easy-to-read figures, countries that have the right to countries that don’t, and then countries before and after adoption. They then present, in figures, more sophisticated, stacked event-study specifications with extensive controls.6 This transparent quantitative analysis is supplemented by gripping case studies and an extensive discussion of alternative theories. We learn about President Vladimir Putin’s Russia, President Recep Tayyip Erdogan’s Turkey, and recently deposed State Counsellor Aung San Suu Kyi’s Myanmar, and about the (relative) success of some organized groups at protecting core rights where others failed, even under harsh authoritarian rule.

Chilton and Versteeg have generated foundational questions about whether, for instance, it is even possible to classify rights as entailing greater or lesser organizational support. They have also paved the way toward answering, rather than avoiding, fundamental empirical questions when the data, like the real world, is imperfect. In this Book Review, I will first summarize and critique this book on its own terms—as a major theoretical and empirical contribution to the debate on when and how constitutions matter. There are, of course, many ways in which one can debate and question the specifics of Chilton and Versteeg’s theory (and some, but fewer ways, to question their empirics), so it is worth pointing to these.

But at the time of a pandemic, when fundamental liberties are curtailed around the world, the book’s core thesis about the importance of organizations in protecting rights could not be timelier. Around the world, scores of restrictions have been put into place—hundreds of countries, for example, have curtailed freedom of movement.7 And other rights have been curtailed through government inaction. The UN Anti-Torture mechanisms, for example, report that tens of thousands of prisoners are known to have contracted COVID-19,8 while UNESCO reports that in recent months over 60% of students globally have seen fundamental rights to education curtailed due to school closures.9 And the willingness of authoritarian (and democratic) leaders to use the pandemic to expand their powers and implement unrelated laws and restrictions is terrifying. The pandemic offers a hard test of Chilton and Versteeg’s theory that some rights will fare better than others under pressure. It is to this discussion that I devote the last part of this Book Review.

But is it the case, as Chilton and Versteeg’s theory would predict, that some resistance has been possible? Is it the case that one type of rights—organizational rights—has been less compromised than others? This is a hard question to answer, as early on in a pandemic it is hard to know what is temporary and what is here to stay. That said, I believe there are strong indications that Chilton and Versteeg’s theory about the greater resilience of organizational rights is proving prescient. Some organizational rights—notably freedom of religion and the right to unionize, and to a much lesser extent the right to form political parties—seem to be, for now, somewhat less threatened than individual rights, such as the right to free movement or the right to education. In the pages that follow, I first explore how Chilton and Versteeg’s book presents the pre-COVID-19 world. I then present some useful extensions to their theory for a post-COVID-19 universe, full of significant rights restrictions.

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