How the Process of Making a Constitution Affects the Distribution of Rights

• In Event: Public Participation in Constitution Making

Abstract

How does the process of making a constitution shape the distribution of minority and majority rights in the constitutional design? While the constitutional protection of rights of various kinds has received widespread attention, little is known about the impact public participation has on the scope and content of these rights. Samuels (2006) and Ghai (2001) provide some evidence demonstrating a link between more participatory constitution-making processes and more expansive and widely accepted rights protections. Yet, drawing from theoretical claims about conditional legitimacy, collective decision making, and the role of politics in constitution making, we argue that although higher levels of public participation increase the number and scope of these rights (Arato 1995), this increase is largely concerned with majority rights. Drawing on the critical perspectives of Moyn (2018) and Hirschl (2004), we hypothesize that higher levels of public participation are associated with political polarization and persistently weak influence from already disadvantaged minorities. Through a comparative analysis of all constitution making processes since 1974, we estimate the relationship between higher levels of public participation and the number and type of rights included in constitutions. We argue that the expansion of rights serves mainly to protect the interests of numerically large groups and economically privileged groups. We begin with a conceptualization of majority and minority rights, and proceed through the description and analysis of the prevalence of these rights in constitutional texts.

Authors

• Anna Fruhstorfer, Humboldt University of Berlin

• Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity