EBP 1: Sham Constitutions

This article aims to provide a classification for constitutional effectiveness in relation to their contents. It asks the question: does a nations constitution determine the political direction (most accurately the human rights record) of its country? Nations may overperform or underperform in achieving their constitutional visions, or they may simply serve the purpose they set out to achieve which can be a whole lot, not much and everything in between. Law and Versteeg come up with five categories of constitutional compliance:

1. Sham constitutions: countries that make “far-reaching promises” but underperforms in achieving constitutional compliance.

2. Modest constitutions: countries promise few rights and overperform in their delivery of rights. It is noted that countries that do this “cannot underperform to any great extent” because “they have committed themselves to so little.”

3. Strong constitutions: these are nations whose constitutions promise many rights and the nation, for the most part, delivers.

4. Weak constitutions: these constitutions do not promise much and nations with them rarely (if ever) exceed constitutional expectations. “It is not a sham” because the “content align reasonably well with actual practice.”

5. Average constitutions: “these do not fall neatly in any of the preceding four categories.” These constitutions promise and deliver an average number of rights, they do not exceed expectations and expectations are neither aspirational nor sham-like in nature. (882-883)

I believe the above are strong descriptors of constitutional compliance and the emphasis on the upholding of promised human rights is a good measure of constitutional success. Constitutions are categorised based on the number of rights mentioned vs the number that are recognised in practice, credit is also given to nations that constitutionally (de jure: legislatively) do not recognise a right but it is recognised in practice (de facto). 

I am drawn to the theoretical details over the statistical analysis which is dense. Rights are prescribed a number value without consideration that some violations are more egregious than others. Frequency of violations are broken down into ‘frequently,’ ‘occasionally’ and ‘never’ without consideration for severity or significance to the population. The authors would argue that this isn’t relevant to the study as the purpose is to measure constitutional performance. However, this sort of comparative statistical analysis does not take significant variables, such as cultural and historical factors, whether the nation is newly established or currently or previously colonised, into account. It is true to say, as the authors do, that “one cannot measure government respect for rights with a yardstick that itself varies in size” according to a nations own understanding of rights (877). I agree that it is best to say that either a right has or has not been violated but to use this data to draw conclusions on matters that are not constitutional in nature (such as geography, 907-912) is not helpful. Constitutional compliance is low in Africa, but not because they are in Africa. Instead, it would be more appropriate to use this data to determine which rights violations are more likely to result in poor overall constitutional performance.

The benefits of this article lie in the classification system and it is possible to use the method devised to evaluate nations on their own merits (or lack thereof). The conclusions the authors arrive at regarding global constitutional trends (age of the constitution and geography for example) are arbitrary when considered next to the correlation between regime type and compliance. 

One of the more interesting discussions is the definition of a constitution: do judicial interpretations constitute constitutional law? Law and Versteeg write that the US “Supreme Court has blurred the line between constitutional interpretation and constitutional amendment” (873). However, the authors, in reference to their previous publications, appear to consider only “large-c” (formal) constitutional norms in their analysis (873). Judicial interpretation would fall into the category of “small-c” constitutionalism (footnote 49, 873-874). 

This discussion reminds me of Lecretia Seales’ case a few years ago. Unlike in the US, where the Supreme Court, as stated by the authors, enjoys a great deal constitutional influence, in New Zealand, the courts (in this case) deferred to parliament, declining to rule on whether Lecretia’s (who was dying of cancer and wished to end her life through a medically assisted death) human rights were being violated, as the circumstances were not addressed in legislation. The judge wrote: 

“The changes to the law sought by Ms Seales can only be made by Parliament. I would be trespassing on the role of Parliament and departing from the constitutional role of Judges in New Zealand.” (https://s3.amazonaws.com/s3.documentcloud.org/documents/2093584/seales-v-attorney-general.pdf, 5)

In the context of the article, Lecretia Seales’s case (had the court granted her request) would come under the definition of a small-c constitutional issue, rather than a large-c formal consideration. It is also interesting to consider the power dynamics highlighted by the American vs New Zealand attitude towards rights. The US courts can grant and take away rights on a whim (consider both the granting and rescinding of Roe v. Wade, the constitutional right to abortion). Here, in New Zealand, the court was approached with a profound moral issue and decided that legislation was required to address the concern: the existing constitutional legislation (Bill of Rights, Constitution Act, for example) did not address the issue, therefore it was not appropriate to rule on the matter. The US constitution does not mention abortion, yet the Supreme Court feels compelled to rule on the matter. This represents the significant power institutions can wield in the name of democracy, and this power is considered de facto rather than de jure (footnote 63, 876).

I believe the strengths of this article lie in the descriptors of constitutional compliance. The statistical analysis is at times arbitrary but, when considering how it is used to classify nations on their individual merits, the paper is strong.

References:

Law, David S., and Mila Versteeg. “Sham Constitutions.” California Law Review 101, no. 4 (2013): 863–952. http://www.jstor.org/stable/23784322.

https://s3.amazonaws.com/s3.documentcloud.org/documents/2093584/seales-v-attorney-general.pdf