Vol. 36 No. 01 (May 2026) pp. 5-9
HOW CONSTITUTIONAL RIGHTS MATTER by Adam Chilton and Mila Versteeg. New York, NY: Oxford University Press, 2020. 396 pp. Hardcover $160.00. ISBN 978-0190871451.
Reviewed by Susan Achury, Department of Political Science, Lycoming College. Email: achury@lycoming.edu.
The language of constitutional rights has profoundly shaped global politics. The U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization (2022), which reversed Roe v. Wade (1973), has reinvigorated debates about the value of constitutionalizing rights. In the United States, advocates and scholars have argued that only formal constitutional entrenchment can secure abortion rights against future legislative erosion (Geiger 2023). Yet across Latin America, feminist movements have secured constitutional protections for abortion access and state obligations to address gender-based violence and feminicide, against similar anti-rights agendas that continue to contest these gains, although the gap between constitutional text and lived experience for women remains wide. While France has led the list of countries constitutionalizing the right to abortion, the question remains whether it is necessary to constitutionalize rights to secure their protection (Bottini et al. 2024). This question is at the center of politics beyond the feminist debates, including different political agendas, for example, those related to global movements addressing climate change and environmental rights, proposing the right to a clean, healthy, and sustainable environment, or recognizing nature as a constitutional subject, as well as the digital and technological rights, and the rights to truth, justice, and reparation.
How Constitutional Rights Matter, by Adam Chilton and Mila Versteeg, has become a cornerstone work in comparative law research. In the context of a remarkable global expansion of constitutional rights, with the average number of enumerated rights per constitution doubling between 1946 and 2016, the book presents a sobering finding: the constitutionalization of rights does not reliably produce greater respect for those rights in practice. Rather than treating this gap as an anomaly, Chilton and Versteeg treat it as their analytical baseline, shifting the question from whether constitutional rights matter to which rights matter and through what mechanism. The book employs a quantitative approach to examine this question, contributing significantly to understanding the challenges inherent in assessing the impact of constitutional rights, particularly on the gap between de jure protections and de facto outcomes.
How Constitutional Rights Matter examines eight constitutional rights—freedom of speech, prohibition of torture, freedom of movement, right to education, right to health care, freedom of religion, right to unionize, and right to establish political parties, categorizing them into individual and organizational rights, with the latter proving substantially harder for governments to encroach upon. Building on over eight years of research, the book addresses significant empirical challenges, providing a robust framework for future studies and prompting a critical examination of the effectiveness of constitutional frameworks.
A new characterization of constitutional rights
Constitutional rights are often studied within generations. The first generation includes negative liberty rights, which protect individuals from state actions. The second and third generations encompass positive socio-economic and cultural/group rights, often demanding government action. The literature has assumed that the gap between de jure and de facto rights is wider for second- and third-generation rights because they are often treated as aspirational principles rather than enforceable rights (Wiles 2006).
The authors investigate how rights matter across these categories, showing that the enforcement of even negative liberty rights depends on more than government abstention: it requires that citizens be able to identify when a right has been violated and act collectively to impose political costs on those responsible. Challenging the assumption in comparative constitutionalism that the de jure and de facto gap is primarily determined by a right’s generation or legal enforceability, they identify and trace that the availability of organizational infrastructure to defend rights constrains and shapes government behavior.
The argument
Constitutions are complex legal and political instruments that can result from profound political transformations or serve as instruments of political encroachment. Their ability to limit government behavior significantly depends on contextual factors, such as the independence of the courts and government interests. However, the authors focus on inherent aspects of rights that make them effective at constraining government behavior. In Part I, they argue that rights granted to be exercised within organizations are better at solving two problems: agreement on the concrete violation of the right (the coordination problem) and the willingness to punish the government (the collective action problem). Therefore, these rights are more likely to become costly for the government to violate without fearing repercussions.
The book develops a theoretical account of why organizations are crucial for enforcing constitutional rights. Building on seminal works such as Rosenberg’s The Hollow Hope (1991) and Epp’s The Rights Revolution (1998), the authors argue that rights enforcement is not automatic and that governments will refrain from violating rights only when such violations are politically costly. Overcoming the problems of identifying violations and imposing costs requires organized action. Formal organizations are well equipped to address these problems and motivated to protect rights, even if protecting rights is not their primary mission. Meanwhile, when rights are practiced individually, equivalent organizations do not exist, and civil society groups reliant on dedicated members are typically weaker than mass-membership organizations in protecting rights.
The findings
The empirical analysis, a cornerstone of this research, reveals that constitutional rights enjoyed individually may not suffice to prevent governments from repressing citizens’ rights (Part II). However, once constitutionalized, rights practiced within organizations, such as freedom of religion and the right to unionize and to form political parties, are associated with improved outcomes (Part III). The comprehensive quantitative analysis of each right presents four comparisons: between countries with and without a given constitutional right; within countries before and after constitutionalizing the right; stacked events; and stacked-event regressions that include standard control variables, country-fixed effects, year-fixed effects, and event-fixed effects.
This quantitative approach is paired with case studies that further explore the effect of the organizational aspect of constitutional rights. In Chapter 6, for civil and political rights, the authors find that free speech does little to curb government violations. They present similar findings for two other rights: the prohibition of torture and the freedom of movement. These findings challenge previous research indicating a positive effect of freedom of expression on de facto measures (Keith 2011). This new evidence prompts further investigation of media structures under which the constitutional rights effectively limit government abuses. The Polish case examined in the chapter sheds light on potential conditional factors, illustrating how the private press failed to coordinate responses when the right-wing Law and Justice Party took control of the country’s public media.
In Chapter 7, the authors analyze the right to education and healthcare as examples of second-generation rights exercised individually. The statistical analysis shows that constitutionalizing these rights does not increase public funding. A case study on the right to healthcare in Colombia further supports the authors' main claim, showing the challenges in enforcing this right despite an activist judiciary, given the individual way in which the right is exercised. The findings call for further analysis of the limits of judicial institutions in implementing rights, even when they enjoy considerable independence and authority.
Unlike the ineffectiveness of constitutionalizing individual rights, Chapter 9 shows how constitutionalizing freedom of religion improves outcomes. The separation of church and state is linked to higher levels of religious freedom, while a single-state religion negatively impacts it. The chapter further illustrates the organizational dimension of religious rights with a case study of Russia. It reveals that because most religions typically have well-established connections to the government, they are better positioned to coordinate against rights encroachment. While minority groups may benefit from these actions in cases of conflicting interests, majority groups may support the curtailment of the rights of religious minorities. Once again, the authors show that the limitation of litigation is that it is often a less powerful strategy than applying political pressure, leaving minority groups less equipped to protect their constitutional rights.
Similarly, Chapter 10 discusses how unions are well-equipped to address coordination and collective action problems, emphasizing the role of constitutional protections as legal tools that effectively empower these organizations to protect workers’ rights. The statistical analysis indicates that the right to unionize is associated with greater respect for workers’ rights. Additionally, a case study on Tunisia demonstrates that constitutionalizing the right to unionize in 2014 has broadened the type of groups that exercise the right and the frequency with which it is invoked.
The constitutional protection of political parties is presented in Chapter 11, exploring Myanmar’s 2008 reform that has facilitated the emergence of dozens of new parties despite the illiberal aspects of the constitution. Constitutionalizing the right matters because it signaled to parties that they could organize, under the assumption that the military was serious about allowing them to do so, even in such an illiberal constitutional regime.
The unique focus on the organizational aspect of constitutional rights in this research is a significant contribution to the field. The findings underscore the pressing need to examine rights across established categories—first, second, or third-generation, deepening our understanding of the complex dynamics of constitutional rights and paving the way for new avenues of research and policy development.
Implications and Future Directions
The book’s exploration of how constitutionalizing rights matters has opened new avenues of inquiry. Creating a roadmap for empirical research invites a more nuanced approach to the role of constitutional rights in organizing and mobilizing society to protect liberal democracy. It has broader implications for multiple areas of comparative constitutionalism. For studies of constitutional design, this work identifies a gap in the organizational infrastructure of rights, for example, the attention to who can exercise the right as a key to making constitutional protection accessible across different groups, particularly minority and marginalized groups. The book’s findings leave open the question of whether other de jure constitutional tools can achieve the same organizational effect in protecting rights.
Moreover, the organizational dimension of constitutional rights, which increases their de facto impact on government behavior, should also be examined in judicial decisions shaping the “small-c” constitutional rights, as those included in the legal system as judicial interpretations. If organizational aspects shape the effectiveness of constitutional rights, can courts better address an organizational element of “small-c” rights? Are “small-c” rights more likely to constrain the government? This distinction may guide civil society and interest groups’ decisions about the benefits of legal protections secured through the judiciary compared with their formal constitutionalization.
The research underscores the practical implications of understanding how rights consciousness can reduce the need for clear organizational structures by making it costly for governments to violate rights. This insight could be linked to the constitutional-making process, shedding light on why some governments perceive higher costs for violating constitutional rights. An illustrative example of this is Taylor’s research in Colombia (2023), which demonstrates the transformative power of Tutela in providing a platform for citizens to assert their rights and aiding civil society in organizing around the exercise of these rights. Finally, Chilton and Versteeg focus on government behavior—the vertical effect, raising questions about the horizontal impact of constitutional rights: When do rights shape behavior among private individuals? This question is key to rights that are likely affected by other citizens’ behavior, such as the right to equality. This analysis should consider differences in the government’s costs compared to those of other actors, with or without state intervention.
The political process of establishing new constitutional rights aims to shape people’s lives, and history shows that these rights only hold value when accompanied by state-enforced duties. This book is a significant step toward understanding how the rapid growth of constitutional rights documents has not led to a comparable improvement in the actual protection of rights. It questions which rights have practical value or are merely symbolic, and why they can effectively compel governments to respect them. The book supports the argument that constitutional rights matter when backed by progressive laws, courts, and social movements. Contributing to the work on the constitution’s failure to reorganize power structures, which undermines the enforcement of new rights (Gargarella 2014), this book establishes a strong research agenda focused on creating incentives that increase the likelihood that more constitutional rights will have a real impact.
CASES:
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
Roe v. Wade, 410 U.S. 113 (1973).
REFERENCES:
Bottini, Eleonora, Margaux Bouaziz, and Stéphanie Hennette-Vauchez. 2024. “Enshrining Abortion Rights in the French Constitution.” Verfassungsblog: On Matters Constitutional. March 9. https://verfassungsblog.de/enshrining-abortion-rights-in-the-french-constitution/.
Epp, Charles. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: The University of Chicago Press.
Geiger, Sarah. 2023. “Constitutionalizing the Right to Abortion Is Not Political Opportunism.” Verfassungsblog: On Matters Constitutional. November 27. https://verfassungsblog.de/constitutionalizing-the-right-to-abortion-is-not-political-opportunism/.
Gargarella, Roberto. 2014. "Latin American Constitutionalism: Social Rights and the 'Engine Room' of the Constitution." Notre Dame Journal of International and Comparative Law 4(1): 9-18.
Keith, Linda Camp. 2011. Political Repression: Courts and the Law. Philadelphia, PA: University of Pennsylvania Press.
Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring about Social Change? Chicago: The University of Chicago Press.
Taylor, Whitney K. 2023. The Social Constitution: Embedding Social Rights Through Legal Mobilization. Cambridge: Cambridge University Press.
Wiles, Ellen. 2006. "Aspirational Principles or Enforceable Rights? The Future for Socio-Economic Rights in National Law." American University International Law Review 22(1): 35-64.
© Copyright 2026 by author, Susan Achury.
