Astute observers of Latin American politics note a widespread shift towards social inclusion at the turn towards the twenty-first century. Is such a shift evident in written constitutions, and if so, how? We leverage historical data on the content of constitutions to explore this question. A preliminary test is whether the Bolivarian republics of Venezuela, Ecuador, and Bolivia – the militant edge of the “inclusionary turn” – represent a shift from their constitutional trajectory. The evidence suggests that in both style and content, the Bolivarian constitutions are novel by historical standards. A second part of the chapter explores, broadly, the patterns of inclusion across the dimensions of recognition, access, and resource distribution. There is, in fact, a strong trend towards the constitutionalization of inclusion within each of these dimensions. We observe the strongest evidence of such in channels of political access, in the form of participation and accountabililty. Finally, we document a counterintuitive element of the inclusionary turn – the persistence of, and even increase in, strong presidential power with respect to lawmaking authority. We advance the possibility that presidential power, for all of its other implications, may be conducive to inclusion. Broadly, processes of political inclusion are well represented in written constitutions.

A standard way to think about constitutional efficacy is to compare the text of a document with reality, as captured in some empirical measure. In our experience, it is an extremely rare conversation about comparative constitutions that is not interrupted by a plaintive interjection – by well-meaning observers – that constitutional rules are not always enforced. While commentators no doubt intend such remarks as a caution against excessive formalism, we find these interjections tiresome and sometimes wish they were deterred by cruel and unusual punishment. Too harsh? Perhaps, but the interjection misunderstands the appeal of constitutions entirely. The surprising fact is not that constitutions are often ignored; it is that they guide the behavior of power-hungry leaders at all! Indeed, the holy grail of constitutional scholarship is the identification of those conditions that lead leaders to adhere to their prior commitments (and to those of their forbears). In this chapter, we reconsider an important condition that is central to constitutionalism: time.

Our chapter makes the observation that efficacy changes over time: Constitutional provisions can be either more or less effective over time (or the effect can be constant). In thinking about the criteria for constitutional success, it seems useful to consider whether there are general trends in efficacy over time, and whether certain provisions are more vulnerable than others to decay and desuetude. Using rights as a focus, this chapter undertakes that inquiry.

We have grappled with this question previously, mostly in an effort to speak to the normative implications of long-lived constitutions (Elkins et al. 2009) and, then, mostly in passing. Our return to the question arises in the context of our current investigation into the origins, spread, and consequences of constitutional rights. Our empirical approach, therefore, is myopically rights-centric. To be specific, our research question is, do constitutional rights become more or less effective as they age?

To emphasize our focus on rights, and since the analysis of institutional effects can be maddeningly aggregate and abstract, consider the right to health in Kenya and South Africa. Kenya entrenched the right to health when it rewrote its constitution in 2010 (Article 43). South Africa incorporated a right to health in its 1996 post-apartheid constitution (Article 27). Neither country had a right to health in its prior constitution.

“What is the difference,” went an old joke in the Soviet Union, “between the Soviet and U.S. constitutions? The Soviet constitution guarantees freedom of speech; the U.S. constitution guarantees freedom after speech.” The joke captures the common intuition about the function (or dysfunction, rather) of constitutions in authoritarian regimes. Many other examples abound: citizens of North Korea might be surprised to learn that they are guaranteed rights to free speech, assembly, and association, while the constitution of Niger guarantees each citizen the right to health and education, notwithstanding the fact that the country ranks 182nd out of 182 countries rated by the Human Development Index.

If we are to generalize from these phenomena, we might expect that there is little difference between constitutions written by dictators and those written by democrats. There is certainly anecdotal evidence to support this expectation. The entrenchment of human rights in constitutions has been nearly universal, with both authoritarian and democratic constitutions incorporating an increasing number of rights. Similarly, the vast majority of constitutions at least mention the word “democracy” (approximately 90 percent of those in force in 2006). We are not the first to note the commonality between institutions in authoritarian and democratic regimes. An entire literature in comparative politics has evolved to understand why dictators adopt multiparty legislatures (Gandhi and Przeworski 2007), elections (Schedler 2006), and relatively autonomous judiciaries (Ginsburg and Moustafa 2008). In general, it is thought that such institutions provide information that is used by dictators to prolong their tenure.

INTRODUCTION

The dwindling supply of organs for organ transplants is sometimes attributed to the use of motorcycle helmets, of all things. Head injuries to helmetless riders are often fatal, but leave the riders' otherwise healthy organs intact, thus making the riders perfect organ donation candidates. Helmets, which, by standard estimates, reduce motorcycle fatalities by a remarkable 39 percent (Norvell and Cummings 2002), have appeared to reduce the number of organ donors as a consequence. The estimates that we report later suggest that the elements of constitutional design have almost as dramatic an effect on constitutional mortality. It may be that, like its effect on organ donations, decreased mortality leads to similar downstream unintended consequences for constitutions (as our normative discussion in Chapter Two indicates). But, we do not concern ourselves with that matter here. Our goal in this chapter is to describe and report the findings from our analysis regarding the mortality of constitutions over the last 200 years. In particular, our purpose is to test the hypotheses specified in the previous chapter.

Our focus is on hypotheses having to do with the design of constitutions, as opposed to their environment. Because we are interested in understanding the impact of design over and above that of the environment, we are obliged to specify and measure the consequences of an inclusive set of environmental factors. Doing so pays the analytic dividends of controlling for such effects, but also can be enlightening in its own right.

“All happy families are alike,” began Leo Tolstoy in Anna Karenina (1877), “but every unhappy family is unhappy in its own way.” Certainly, the last three chapters remind us of the multiple sources of unhappiness in constitutions. Perhaps, however, our focus on failure has obscured the qualities of stable constitutions. Is it that elderly constitutions have simply avoided all of the crises and disabilities that afflict the more fleeting systems? Is there something about them that defies epidemiological analysis? A biographical account of these longer lives seems in order. Even among the unhappy cases, we still have large gaps in our knowledge. How exactly do certain crises destabilize constitutions? How, if at all, do the design features whose therapeutic effects we praise actually work in practice? Case-level material can be insightful for a host of reasons. The next two chapters explore constitutional reform (and non-reform) in two groups of case-oriented analyses. As we describe in the following section, we have adopted a case-study design that, in our view, illustrates the concepts and processes under consideration and maximizes analytic leverage on the challenge of causal inference.

A STRUCTURED CASE-STUDY APPROACH

A close inspection of cases provides a number of distinct analytic advantages. Most obviously, such analysis can illuminate the causal process, something that is sometimes lost in large-n statistical analysis that follows a less sequential evaluation of the association of cause and effect.

Jeanne Calment was 122 when she died in her lifelong hometown of Arles, France in 1997. No one has ever lived longer, or at least no records can verify anyone having done so. At 117, Calment gave up smoking only after her increasingly poor eyesight prevented her from lighting her own cigarettes. A year later, she took up the habit again, apparently undeterred by any vision problems. Until her death her diet consisted, in part, of chocolate (reportedly two pounds of a week, mostly Swiss) and generous shares of olive oil (eaten directly) and port wine. In any predictive model of human life span, the case of Jeannne Calment lies considerably above the regression line.

The U.S. Constitution is, in our view, something of the Jeanne Calment of higher law. Like Calment, the U.S. Constitution defies expectations, at least according to our model of longevity. The U.S. document embodies many of the elements that we predict should lead to increased mortality rates. Our theory, as described below, focuses on the importance for constitutional longevity of higher than average levels of flexibility, inclusion, and specificity – none of which are in abundance in the Philadelphia creation. There may be good reasons to adopt the Philadelphia model – the constitutional equivalent of cigarettes, chocolate, and wine – but constitutional endurance is not one of them.

A THEORY OF CONSTITUTIONAL RENEGOTIATION

Our theory – call it a theory of renegotiation – involves notions of constitutional formation, adjustment, and endurance.

This book is the first from the Comparative Constitutions Project, a long-term research initiative we began several years ago with the goal of understanding the origins, characteristics, and consequences of written constitutions for most independent states. As part of this project, we have since identified and collected the texts of nearly all national constitutions from 1789 onward, and we are engaged in a systematic effort to code their contents along a wide range of dimensions. Readers interested in details of the project can find more information at www.comparativeconstitutionsproject.org. Logically prior to the collection of constitutional texts and a coding of their contents comes an accounting of when, exactly, the various documents came to exist and when they were replaced. This sort of census requires comprehensive historical information on the chronologies of national constitutions, including dates of birth, death, and amendment. In seeking genealogical data about, say, the whereabouts of the Ecuadorian constitution of 1830, we frequently came across veritable “obituaries” that reported the circumstances of death. It was not long before we were deeply engaged in questions of the mortality and endurance of these constitutions ourselves.

This book has its origins at the University of Illinois, where Elkins and Ginsburg were colleagues in the Political Science Department and the Law School, respectively, and where Melton received his doctorate. We are especially grateful to Peter Nardulli, Director of the Cline Center for Democracy at the University of Illinois, for his early and continuing support, friendship, and faith in our project, and to Richard Cline for his vision in endowing the Center and our efforts.