Do Constitutional Rights Matter?

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On June 24, 2020, Constitutional law professor Mila Versteeg (University of Virginia) discussed the practical importance and relevance of constitutional rights as part of an online webinar on Modern Challenges in Constitutionalism: Perspectives from the World’s Leading Experts hosted by Professor Richard Albert (University of Texas at Austin).  Professor Versteeg’s fascinating talk focused on her just released book How Constitutions Matter, which was published by Oxford University Press on June 29th.  

Professor Versteeg began her remarks by posing the question that inspired her book: do constitutional rights even matter?  After paralleling the individual and collective rights– what Americans would call the “Bill of Rights” — included in the American and North Korean constitutions, highlighting their close similarities, Professor Versteeg pointed out the important distinction between de facto and de jure rights in the context of this complicated discussion.  De jure rights refer to the specific rights contained within national constitutions, while de facto rights refer to whether those rights that exist on paper are, in reality, exercised and enforced on the ground.  According to the Professor, these two things often do not line up: those countries with the highest number of fundamental human rights packed into their constitutions, had the worst human rights practices, while those with fewer rights had a better record of protecting and enforcing them in practice (see the chart below, which Versteeg shared during her virtual discussion).  

Returning to the original question — do constitutional rights matter? — Professor Versteeg’s answer was complex, nuanced, and a bit unsettling.  Her answer: it depends on the right.   According to Professor Versteeg, when a right naturally gives rise to an organizational infrastructure that can support, enforce and act as a watchdog over that right, then that right goes from being merely a de jure right, a right that exists on paper, to a de facto right, a right that exists in reality.  In effect, civil society organizations, organizations that are neither government run nor driven by profits, but instead devoted to their particular cause (which in this case is a right), acts as the protector over that right, challenging and calling on the government when its enforcement is lacking.  

Professor Versteeg focused on three rights in particular to illustrate her point –  the right to form political parties, to unionize, and to worship.  Inherent in each of these three rights, which appear in many but not all constitutions, is an organizational structure; in other words, each of these rights naturally gives rise to an organizational infrastructure that can emerge and become its protector. Unions emerge in countries where the right to unionize is constitutionally granted, and protect the right to unionize; political parties defend and oversee the right to form into political parties; and religious institutions of all varieties defend the right to religious freedom.  Other rights, such as the freedoms of association, assembly and expression, which do not as easily give rise to an organizational structure to protect and defend them from government overreach, are not as protected, and therefore, more easily restricted or unrealized.  

The Covid-19 pandemic offers a current example of Versteeg’s insightful conclusion. When governors throughout the United States imposed restrictions on religious services, in many cases banning them entirely, religious organizations filed a flurry of lawsuits, fighting tooth and nail to defend their constitutional right to religious freedom.  

In short, organizations make constitutional rights matter.