Sham Constitutions

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. Examples abound of constitutions that amount to little more than cheap talk or false advertising on the part of abusive regimes. Yet virtually nothing is known empirically about the prevalence of sham constitutions. This Article seeks to fill this gap in our knowledge with the first global and empirical study of the extent to which countries uphold their constitutions. Analysis of an original data set covering the rights-related provisions of every constitution in the world over the last sixty years enables us to score countries according to the extent that they violate their constitutional promises–or, conversely, the extent to which they deliver even more than they promise. Calculation of these scores makes possible a ranking of constitutional underperformers and overperformers, in the form of a “hall of shame” and “hall of fame.” Such rankings do more, however, than fill a gap in the scholarly literature: they also promote constitutional accountability by providing performance benchmarks and exposing chronic underperformers to criticism and shaming. This Article proceeds to explore whether certain constitutional rights are more likely to be violated than others, whether sham constitutions are more prevalent in particular geographic regions, and whether sham constitutionalism is itself a predictable phenomenon. Each country’s performance is analyzed in three categories: personal integrity rights, civil and political freedoms, and socioeconomic and group rights. 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 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, we identify 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. Notably, neither judicial review nor ratification of human rights treaties is statistically associated with reduced violation of constitutional rights.