Empirical Constitutional Studies: Future Directions
UVA Law Faculty Affiliations
Our new book—How Constitutional Rights Matter—tries to answer a difficult empirical question: do constitutional rights actually change government behavior? We theorize that constitutional rights that protect individuals often fail to constrain governments, but that constitutional rights that protect organizations can be powerful tools to push back against repression. The reason is that organizations have both the incentives and means to strategically use the constitution to protect their rights. To test this theory, we leveraged a range of empirical methods: large-N statistical analyses, case studies from around the world, survey experiments conducted in Turkey and the United States, and insights from an expert survey of constitutional law experts from over 100 countries. The results from these different analyses consistently suggest that enumerating individual rights in constitutions is not associated with better rights protections, but that constitutionalizing organizational rights does appear to improve actual rights practices.
Our Book is part of a growing body of research in empirical constitutional studies. This line of research has sought to use methods from empirical social science to assess the impact of constitutional law on a range of outcomes of interest. In the fall of 2020, we convened a virtual Symposium to discuss our Book and the future of scholarship in this growing field. This Symposium brought together leading researchers that study constitutions around the world. Many of those researchers use empirical methods in their own work, but some are skeptical of empirical approaches to constitutional law.
Many of those participants generously contributed written essays on the future of empirical constitutional studies to this online Symposium. These contributions can be divided into three categories: (1) identifying new methods that should be used (more) in empirical constitutional research, (2) raising new questions for future exploration, and (3) proposing new avenues for data collection.