April 29, 2005

Constitution's All A State Of Mind

Apropos of nothing, really, comes this fun passage from Cass Sunstein's The Second Bill of Rights:
It is interesting to ask here whether there is a connection between social and economic rights [i.e. enshrined in a country's constitution] and government policy. An extensive study gives some partial answers, indicating that such rights can have real effects. Many constitutions promise help for those who are unemployed, disabled, or simply poor, and a constitutional right of this kind is strongly connected with larger transfer payments for such people, even if we control for other variables that might confound the analysis.

On the other hand, a constitutional right to education is associated with lower expenditures for public education. The right to health services has a positive association with public health expenditures, but the association is weak and not statistically significant.
He's right, that is interesting. Sunstein also makes a good point about constitutions abroad. With our hallowed Constitution, and whenever Americans consider amendments and such, we tend to think of them solely in terms of their real-world effects. "What will this amendment do, how will it translate into concrete law?" But Sunstein points out that many other countries think constitutions ought to include principles that aren't necessarily supposed to be applied rigorously and strictly enforced by the courts, but merely express national aspirations.

So, for instance, when Sunstein was advising Ukraine on drawing up a new constitution in the '80s, several drafters wanted to include a provision requiring that the press be objective. Obviously, from an American point of view, this seems insane: How the fuck are the courts going to define "objective"? What will be considered "opinionated"? But no, the Ukrainians just wanted to express an aspiration of sorts: that Ukraine would be the sort of country where journalists try their hardest to be objective and truthful.

To veer off sharply on yet another tangent, this might be a good way of thinking about Arab constitutions, where there's often a lot of wrangling over whether there should be a provision saying "Islam is the sole source of legislation," or "Islam is a source of legislation." To me, this debate seems somewhat meaningless, because the extent to which sharia does, in fact, end up dictating law depends largely on how the courts are set up, how legislatures choose to interpret the provision, etc. Devil's all in the implementation. But going off Sunstein, the constitutional culture also seems important to consider—whether people view their constitution as a strict "law of the land" or a document that includes, among other things, an expression of national aspirations and identity.
-- Brad Plumer 4:18 AM || ||