The British philosopher Jeremy Bentham once described rights as “nonsense upon stilts,” by which he meant that they were simply invented entitlements without a real foundation. Similarly, James Madison worried that rights were merely a “parchment barrier” that could not actually protect citizens. But despite this skepticism, rights maintain a powerful hold on political consciousness in many cultures. In our era, environmental activists, gun owners, LGBTQ individuals, and minority religions all formulate their claims in terms of rights.
For his part, Madison relented in the face of his anti-federalist critics and proposed a set of twelve amendments to the Constitution; ten of these passed and became known as the "Bill of Rights." Rights have since become a central feature of modern constitutions; they help to define the relationship between citizen and state, and provide for limits on government power. International human rights treaties—making good on the promise of the Universal Declaration of Human Rights—replicate and reinforce in international law many of the same rights that are in constitutions.
In our historical inquiry at the Comparative Constitutions Project, we have identified some 116 different constitutional rights that have found their way into constitutions.
The average constitution in force today has 48 rights from our survey, while the overall average for all constitutions ever written is 34. Only 14 out of 887 national constitutions in our historical data lack rights altogether. Of those in force today, Brunei has the least, with only two from our survey, while the current Constitution of Bolivia has the most, with 88. Figure 1 shows the distribution of the number of rights in any given year since 1789. (The slider on that chart allows one to trace the shift across years.)
Living in the Age of Rights
Constitutional rights have proliferated globally after World War II, a phenomenon that David Law and Mila Versteeg call “rights creep.” Whereas the median number of rights for a constitution in 1900 was a bit under 20, that number is now over 40. Figure 2 summarizes this growth, though one can see the same thing with the slider in Figure 1.
Ideas about rights change over time, too. Some core rights, such as freedoms of speech and association, are found in nearly all constitutions ever written. Other rights, such as those for consumers or the right to the free development of personality have only recently emerged on the scene.
How do Rights Vary
There are various ways to conceptualize rights. In our taxonomy, we categorize them as social, economic, civil/political, cultural, legal procedural, among other categories. Sometimes scholars think of them in terms of their historical appearance in constitutions; some are first, second, third, and now fourth generation rights. One can see some of this generational unfolding in our maps and graphs of the prevalence of our various topics.
We sometimes think about rights as unfolding in more and more specific variants. For example, early constitutions might speak broadly of equal protection. Increasingly, however, constitutions single out particular groups of citizens as entitled to equality. These might include groups based on gender, race, religion, or mostly recently, sexual orientation.
Countries and their Rights
In part because countries live with constitutions from different eras, their menu of rights can differ quite a bit. For example, Portugal's relatively recent constitution is rights-heavy, while France's post-war document is less so. Have a look through your favorite reference points by perusing Figure 3 below, which depicts the number of rights for each country over time.
Rights preponderence clearly differs by region. Latin American countries grant their citizens extensive sets of rights, while those in the Middle East tend not to. Perhaps unsurprisingly, non-democracies have fewer rights on average than do democracies. And some rights are idiosyncratic to a particular country, such as Sweden’s granting the Sami people the right to practice reindeer husbandry (Chapter 2, Article 17).
Figure 3. The Number of Rights -- every constitution since 1789
Not only have the number and variety of rights claims expanded but the importance of rights to the written constitution has increased as well. Our research shows that the position of rights sections in the Constitution has moved toward the front of the text over time, and that the share of the overall text taken up by rights has expanded as well.
But at the same time, there are many constitutions that provide rights, without implementing them. North Korea, after all, guarantees its citizens freedom of religion, but imprisons pastors. Figuring out which rights are effective and which ones are not is a tricky task, to which both scholars and activists have devoted a good deal of work. For example, Adam Chilton and Mila Versteeg suggest, in a recent book, that rights that are associated with groups such as churches, parties, and unions are more likely to be enforced. At a minimum, citizens have to know what their rights are, and Constitute tries to advance that goal.
Zachary Elkins is Associate Professor of Government at the University of Texas. Tom Ginsburg is the Leo Spitz Professor of Law and Ludwig and Hilde Wolf Research Scholar at the University of Chicago Law School. The two of them co-direct the Comparative Constitution Project.