Working Group on Law and Democracy

Permanent URI for this communityhttps://hdl.handle.net/2152/15081

The collected works of faculty and students associated with the Working Group on Law and Democracy.

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Ancillary Powers of Constitutional Court
(2009) Ginsburg, Tom; Elkins, Zachary
Are Patriots Bigots? An Inquiry into the Vices of In-group Pride
(2003) Elkins, Zachary
One view in the study of intergroup conflict is that pride implies prejudice. However, an increasing number of scholars have come to view in-group pride more benignly, suggesting that pride can be accompanied by a full range of feelings toward the out-group. In this paper, we focus on a substantively interesting case of ingroup/ out-group attitudes – national pride and hostility towards immigrants. We explore the relationship in two fundamental ways: first by examining the prejudice associated with various dimensions of pride, and second by embedding these relationships in a comprehensive model of prejudice. We find that national pride is most validly measured with two dimensions – patriotism and nationalism – two dimensions that have very different relationships with prejudice. While nationalists have a strong predilection for hostility towards immigrants, patriots show no more prejudice than does the average citizen.
Baghdad, Tokyo, Kabul ...: Constitution Making in Occupied States
(2008) Elkins, Zachary; Ginsburg, Tom; Melton, James
Beyond Presidentialism and Parliamentarism
(British Journal of Political Science, 2013-11-14) Cheibub, Jose; Elkins, Zachary; Ginsburg, Tom
The presidential-parliamentary distinction is foundational to comparative politics and at the center of a large theoretical and empirical literature. However, an examination of constitutional texts suggests a fair degree of heterogeneity within these categories with respect to important institutional attributes. These observations indicate that the classic presidential-parliamentary distinction, and the semipresidential category, may not be systemic. This article investigates whether the defining attributes that separate presidential and parliamentary constitutions predict other attributes that are stereotypically associated with these institutional models. The results suggest the need for considerable skepticism of the ‘systemic’ nature of the classification. Indeed, the results imply that in order to predict the powers of a country’s executive and legislature, it is more useful to know where and when the constitution was written than whether the country has a presidential or parliamentary system.
Can Institutions Build Unity in Multiethnic States?
(American Political Science Review, 2007-11) Elkins, Zachary; Sides, John
We investigate whether political institutions can promote attachment to the state in multiethnic societies. Building on literatures on nationalism, democratization, and conﬂict resolution, we discuss the importance of attachment, understood as a psychological identiﬁcation with, and pride in, the state. We construct a model of state attachment, specifying the individual-, group-, and state-level conditions that foster it. Then, using cross-national survey data from 51 multiethnic states, we show that, in general, ethnic minorities manifest less attachment to the states in which they reside than do majorities. Combining the survey data with minority group attributes and country-level attributes, we show that the attachment of minorities varies importantly across groups and countries. Our central ﬁnding is that federalism and proportional electoral systems—–two highly touted solutions to ethnic divisions—–have at best mixed effects. These results have implications for state-building and democratic consolidation in ethnically heterogeneous states.
The Citizen as Founder: Public Participation in Constitutional Approval
(2008) Elkins, Zachary; Ginsburg, Tom; Blout, Justin
Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay examines hypotheses on the effect of one aspect of public participation in the constitution-making process—ratification— and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.
Classifying Political Regimes in Latin America, 1945-1999.
(Studies in Comparative International Development, 2001) Mainwaring, Scott; Brinks, Daniel M; Pérez-Liñán, Aníbal
This article is about how political regimes should generally be classified, and how Latin American regimes should be classified for the 1945-99 period. We make five general claims about regime classification. First, regime classification should rest on sound concepts and definitions. Second, it should be based on explicit and sensible coding and aggregation rules. Third, it necessarily involves some subjective judgments. Fourth, the debate about dichotomous versus continuous measures of democracy creates a false dilemma. Neither democratic theory, nor coding requirements, nor the reality underlying democratic practice compel either a dichotomous or a continuous approach in all cases. Fifth, dichotomous measures of democracy fail to capture intermediate regime types, obscuring variation that is essential for studying political regimes. This general discussion provides the grounding for our trichotomous ordinal scale, which codes regimes as democratic, semi-democratic or authoritarian in nineteen Latin American countries from 1945 to 1999. Our trichotomous classification achieves greater differentiation than dichotomous classifications and yet avoids the need for massive information that a very fine-grained measure would require.
Classifying Political Regimes in Latin America, 1945-2004
(Oxford University Press, 2007) Mainwaring, Scott; Brinks, Daniel M; Pérez-Liñán, Aníbal
Commentary: Social and Economic Rights in Latin America: Constitutional Courts and the Prospects for Pro-poor Interventions
(Texas Law Review, 2011) Brinks, Daniel M; Forbath, William
Comments on Law and Versteeg's The Declining Influence of the United States Constitution
(2012) Elkins, Zachary; Ginsburg, Tom; Melton, James
Commitment and Diffusion: How and Why National Constitutions Incorporate International Law
(2008) Elkins, Zachary; Ginsburg, Tom; Chernykh, Svitlana
Drafters of new constitutions face a bewildering array of choices as they seek to design stable and workable political institutions for their societies. One such set of choices concerns the status of interna- tional law in the domestic legal order. In a global era, with an ex- panding array of customary and treaty norms purporting to regulate formerly domestic behavior, this question takes on political salience. This paper seeks to describe the phenomenon of constitutional incor- poration of international law in greater detail and provide a prelimi- nary empirical test of the competing explanations for it. First, the dis- cussion focuses on the concepts of monism and dualism, which have become conventional terms used by lawyers to describe the interac- tion of domestic and international legal systems. Second, a theory of commitments as well as the advantages and disadvantages of interna- tional law are set forth. Third, empirical implications are developed for the precommitment and diffusion theories, which are then tested. Findings show that adopting international law is a useful strategy for democracies to lock in particular policies, encourage trust in govern- ments and state regimes, and bolster global reputations.
Comparability and the Analysis of National Constitutions
(2013) Elkins, Zachary
Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960-2000
(International Organization, 2006-10) Elkins, Zachary; Guzman, Andrew; Simmons, Beth A.
Over the past forty-five years, bilateral investment treaties (BITs) have become the most important international legal mechanism for the encouragement and governance of foreign direct investment. The proliferation of BITs during the past two decades in particular has been phenomenal. These intergovernmental treaties typically grant extensive rights to foreign investors, including protection of contractual rights and the right to international arbitration in the event of an investment dispute. How can we explain the widespread adoption of BITs? We argue that the spread of BITs is driven by international competition among potential host countries—typically developing countries—for foreign direct investment. We propose a set of hypotheses that derive from such an explanation and develop a set of empirical tests that rely on network measures of economic competition as well as more indirect evidence of competitive pressures on the host to sign BITs. The evidence suggests that potential hosts are more likely to sign BITs when their competitors have done so. We find some evidence that coercion and learning play a role, but less support for cultural explanations based on emulation. Our main finding is that the diffusion of BITs is associated with competitive economic pressures among developing countries to capture a share of foreign investment. We are agnostic at this point about the benefits of this competition for development.
Constitute: The world’s constitutions to read, search, and compare
(2014-07-07) Elkins, Zachary; Ginsburg, Tom; Melton, James; Shaffer, Robert; Sequeda, Juan; Miranker, Daniel
Constitutional design and redesign is constant. Over the last 200 years, countries have replaced their constitutions an average of every 19 years and some have amended them almost yearly. A basic problem in the drafting of these documents is the search and analysis of model text deployed in other jurisdictions. Traditionally, this process has been ad hoc and the results suboptimal. As a result, drafters generally lack systematic information about the institutional options and choices available to them. In order to address this informational need, the investigators developed a web application, Constitute [online at http://www.constituteproject.org], with the use of semantic technologies. Constitute provides searchable access to the world’s constitutions using the conceptualization, texts, and data developed by the Comparative Constitutions Project. An OWL ontology represents 330 ‘‘topics’’ – e.g. right to health – with which the investigators have tagged relevant provisions of nearly all constitutions in force as of September of 2013. The tagged texts were then converted to an RDF representation using R2RML mappings and Capsenta’s Ultrawrap. The portal implements semantic search features to allow constitutional drafters to read, search, and compare the world’s constitutions. The goal of the project is to improve the efficiency and systemization of constitutional design and, thus, to support the independence and self-reliance of constitutional drafters.
The Constitutional Referendum in Historical Perspective
(Elgar, 2019) Elkins, Zachary
Diffusion and the Constitutionalization of Europe
(Comparative Political Studies, 2010) Elkins, Zachary
This article begins with a rather forceful defense of the explanatory role of formal institutions—and, in particular, constitutions—in the study of democratization. Important aspects of constitutions play a significant part in shaping the quality, type, and survival of institutional arrangements in new democracies. With this assumption, the article turns seriously to theories of constitutional design, any of which must grapple with the overwhelming prima facie evidence of constitutional diffusion. It is well known that constitutional ideas travel easily across contexts. However, scholars until now have lacked even basic empirical evidence regarding the patterns of constitutional similarity across time and space. This article introduces exactly this sort of evidence in the context of 19th-century Europe, employing a new data set expressly designed for such a purpose. The analysis uncovers a number of new insights regarding the spread of constitutional ideas in Europe, insights that disturb some of the classic narratives of democratization in these cases.
Diffusion is no Illusion: Neighbor Emulation in the Third Wave of Democracy
(Comparative Political Studies, 2006) Brinks, Daniel M; Coppedge, Michael
This article develops and tests a specific model of the role of diffusion as a determinant of the magnitude and direction of regime change, using a database covering the world from 1972 to 1996. The authors find that countries tend to change their regimes to match the average degree of democracy or nondemocracy found among their contiguous neighbors and that countries in the U.S. sphere of influence tended to become more democratic in the period examined. They also confirm that countries tend to follow the direction in which the majority of other countries in the world are moving. Their model builds on several findings in the diffusion literature but adds methodological improvements and includes more extensive controls for other variables that have been found to affect regime change—including levels of development, presidentialism, and regional differences—offering further support for some and challenging other findings of the regime change literature.
Does the Process of Constitution-Making Matter?
(Annual Review of Law and Social Science, 2009-07-29) Ginsburg, Tom; Elkins, Zachary; Blount, Justin
Constitution-making is a ubiquitous but poorly understood phenomenon. There is much speculation but relatively little evidence about the impact of different design processes on constitutional outcomes. Much of the debate reduces to the question of who is involved in the process and when. We consider two central issues in this regard. The first is the problem of institutional self-dealing, or whether governmental organs that have something to gain from the constitutional outcome should be involved in the process. The second has to do with the merits of public involvement in the process. Both of these concerns have clear normative implications and both are amenable to straightforward social scientific analysis. This article surveys the relevant research on constitution-making, describes the conceptual issues involved in understanding constitution-making, reviews the various claims regarding variation in constitution-making processes, and presents a set of baseline empirical results from a new set of data on the content and process of constitution-making.
From legal poverty to legal agency: establishing the rule of law in Latin America.
(Organization of American States, 2009-03) Brinks, Daniel M
Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice
(2013) Elkins, Zachary; Ginsburg, Tom; Simmons, Beth
This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that interna- tional rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not the drafters’ countries are legally committed to the agreements (though commitment enhances the effect). Our particular focus is on the all-important International Covenant on Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would not otherwise adopt. This finding confirms the complementary relationship between treaty ratification and domestic constitutional norms, and suggests that one important channel of treaty efficacy may be through domestic constitutions.

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