Zachary Elkins1Zachary Elkins is Associate Professor of Government at the University of Texas, at Austin and co-director of the Comparative Constitutions Project.
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A part of the series, Measuring Impact in Constitutional Law.
I recall vividly a flight that I took about ten years ago. As my wife and I boarded the plane, the pilot greeted us at the threshold—a nice touch. I couldn’t help but notice his necktie, and maybe that was the point. It was emblazoned with “Second Amendment Est 1791” (this one, I think). The tie invited conversation. Why else wear it? It may surprise you that I, as a constitutional enthusiast, refrained from making any comment (no doubt to the relief of my wife and the long line of passengers behind me). Still, I was intrigued by the pilot’s willingness to wear his politics around his neck and, in this case, American Airlines’ tolerance of such political expression. It left me to wonder at the power of the U.S. Constitution and ponder how such power develops. After all, when a law is stitched on clothing (much less tattooed on skin), it has penetrated society in some way.
But conscientious scholars remind us (ad nauseum, perhaps) that constitutional rights are too often fictional. The rights often lack compliance, or they are mere reflections of society’s will—with no real influence of their own. Undoubtedly, some constitutional drafters are engaged in the writing of fiction. The charters of the “Democratic-Republic-of-” countries are classics in the genre. Note, by the way, that I am decidedly not panning constitutional fiction; such works can reveal countries’ political culture and make for good reading—just ask my collaborators on the Comparative Constitutions Project. But I live in a society obsessed with nonfiction. In the United States, constitutional rights take on almost monumental importance in lived experience. Or at least that is my impression—but more on that shortly.
I. Chilton and Versteeg: A Welcome Intervention
Enter Adam Chilton and Mila Versteeg, authors of a recent must-read in comparative law and my point of departure. Chilton and Versteeg liberate us from the hackneyed question of whether “rights matter” to the more meaningful question of when rights matter. Indeed, it should now be illegal for scholars to dabble in unconditional claims about the efficacy or inefficacy of rights. The research cycle is well past that point, if it ever should have paused there at all. Moreover, Chilton and Versteeg’s conditional claim is an interesting one: rights matter when they’re built around groups that can organize their members to enforce those rights (think of how religious groups protect religious rights).
Even for overcommitted readers, I would note that Chilton and Versteeg’s book is well worth picking up. It is expertly crafted—perhaps too well crafted, as it raises the bar for the rest of us. Not only do the authors emancipate us from the prison of the unconditional claim, but their work is systematic and rigorous, their theory clever, and we learn something interesting about some rights that often go unsung. In that last category, I think of the authors’ historical narrative about the right to form parties, a social grouping about which I have become deeply skeptical. After all, there was a reason that Madison worried about faction in Federalist 10, well before the hyper-partisanship of today. And there is a reason that modern constitutional drafters took more than a century since the Philadelphia gathering in 1787 to even take up political parties. And even then, the first drafters to write about parties—Colombia’s in 1886—used their words to ban them! Rampant partyism, in my opinion, may be the most debilitating attribute of our democracy today. Upon reading Chilton and Versteeg, one comes away with a deeper appreciation of the right to form parties, or at least of its origins. Finally, as a sidenote on style, it is striking to read a book in which two scholars dialogue with one another by their first name. I take this as a refreshing reminder not to take ourselves too seriously, even in the deeply serious genre of constitutional law.
II. The Mystery of Compliance
Back to the world of airline pilots and Second-Amendment neckwear. How is it that some rights in some places are meaningful? And, relatedly, what—if anything—would U.S. politics look like if we had a different set of rights? In this line of questioning, the particular thought experiment that occupies me, as someone who reads too many constitutions, is this: what would it be like to live in one of those countries that updates their constitution now and then? That is to say, a constitution with a different, more expanded, set of constitutional rights. I think of Brazil, for example, my typical reference point and a country with surprisingly many similarities to our own.
For one thing, I assume that we would have a much more reasonable, more creative, and more technocratic approach to guns were it not for our Second Amendment. (In any replacement of the clause, we would probably retain an individual’s right to keep, if not bear, arms). But without the Second Amendment, or even under a modern version of the right, our approach to guns would be different. It would likely resemble the way we regulate driving cars or serving peanuts in schools. I also suspect that we would have some version of universal health care if we had the constitutional right to health. And in rereading FDR’s “Four Freedoms” speech—not to mention observing the interesting choices in other jurisdictions—it seems that such a right could easily have made it into a hypothetical post-war U.S. Constitution. I suspect that we would also have a different balance of money and politics if we had the kind of campaign finance provisions that other constitutions have. This is not to say that some of our basic rights haven’t been nicely adapted for use in modern society. I expect that we would have made even less progress on race without the equality rights in the Thirteenth and Fourteenth Amendments. Nor would we have the relative harmony and unity we observe across immigrant communities without the generous citizenship rights of Section 1 of the Fourteenth Amendment, which grants birthright citizenship to every American. All this is to say that our constitution is decidedly a work of nonfiction and, in terms of its edicts, something closer to scripture (as my colleague Sanford Levinson once pointed out in one of my favorite books). In short, our rights matter here.
III. Interest Groups as Inputs and Outputs
Much of the reason that our rights matter has to do with when and where interest groups care to push them, an idea central to the collectivist arguments that Chilton and Versteeg engage.
I find it increasingly quaint to think that the executive branch and law enforcement would enforce the laws in a coherent, rational way. First, we have a lot of laws, more every day, and pitched at every level of government. When I was young—well, probably much older than I’d care to admit—I used to imagine that police officers patrolling the streets walked around with some sort of encyclopedic knowledge of city, state, and national laws. As they scanned the streets, their brains would cross-reference that visual stimuli with their mental legal repository. I suppose that I still hold some diluted version of that notion, which is why my pulse quickens when I see a squad car. But a close childhood friend just retired after a thirty-year career as a police officer in our old stomping grounds in New York City (it turns out that our adolescent addiction to T.J. Hooker was quite formative for him). And in my conversations with him, I’ve become more and more disillusioned about the patrol officer’s compliance calculation, at least as I had imagined it.
Selectivity in law enforcement is, of course, inevitable. And gross inconsistency of enforcement in some jurisdictions can sometimes lead us to think of rule of law, in the Lon Fuller sense, as only a vain hope. A headline-based knowledge of criminal sentencing, and its prima facie inequality, provides one view of such. The Black Lives Matter cases have shined a bright light on the incoherence of law. The parade of cases—of police violence or otherwise—lead us to the disconcerting suspicion that the only crimes that really matter are those in which someone happened to have their phone’s camera rolling. It follows, of course, that any video will be “shared”: like most things these days, injustice doesn’t exist unless it shows up on social media. One reason that a visual is so powerful is that we believe our own eyes, as opposed to a potentially distorted, less graphic, eyewitness account. Another is that video can be a strong coordinating device given its viral and communal quality. Sharing visual imagery of an atrocity can quickly create consensus among a broad group of people about what happened.
It’s not clear to me at all that consensus among the citizenry should be necessary for enforcing the law—or that the citizen outrage should have a role at all—but apparently it helps. When a group has a shared understanding of events and collective outrage, rhetorical and physical pressure follows. And evidently, group pressure, whether manifested as either a virtual or a traditional poster-board-wielded campaign, has a powerful effect on public officials. Should officials be more (or less) responsive to a crime depending upon the degree of public outrage? Maybe not. But they are.
This coordinating idea is what is at root in the mechanisms that Chilton and Versteeg have identified. But the authors have a very particular sense of coordination, which I would prefer to generalize. Their focus is on what I would call “membership groups”—churches, parties, and unions. These groups are sticky, routinized, and institutionalized. But even an ad hoc group of concerned citizens, whipped into a collective frenzy by a ten-second video, can be a powerful voice. In that case, the coordinating device can be a grainy video clip and not formal membership, but the effect can be the same. After all, the old maxim is true. The masses do not organize themselves; they need to be organized.
It seems to me that the kinds of rights that are meaningful in the United States are accompanied by an associated group, and that groups and constitutional rights are mutually constituted. The Second Amendment, again, is an excellent example. Very few countries have anything close to our prerogative to keep and bear arms, and those that do have maintained the “keep” (at home) part, at the expense of the “bear” (in the streets) part. And probably, the common-defense justification in the Second Amendment’s prefatory clause, which one finds in other country’s incarnations, is taken more seriously as a limitation elsewhere. Our maintenance of the provision is most likely the result of the iron trap of our amendment procedure (and culture). But this historical account of our lived experience with the Second Amendment is an interesting one. Gun restrictions have been quite common in municipal jurisdictions in the United States over the last two hundred years, and it seems that the federal government, including the U.S. Supreme Court, found little reason to interfere with these restrictions during this time. It is only with the District of Columbia v. Heller case in 2008 that the Second Amendment became judicially relevant.
It seems inescapable that part of the newfound relevance has something to do with the political power of the National Rifle Association (NRA), which has been good about keeping legislators “in line” and fostering a grassroots political consciousness about some threat to individual gun ownership. Again, the threat of regulation has been and continues to be real; what is different from earlier eras is the politicization and citizen pressure, coordinated by an interest group. Would the NRA thrive without the Second Amendment? One social-science answer would be to analyze NRA promotional material over the years; I suspect that the text string “Second Amendment” would be quite frequent in an analysis of such content. And go the other direction: would the right have been “activated” without the NRA? My sense is probably not, on both counts. In this sense, Mike Spies’s gripping account of the influential NRA lobbyist Marion Hammer is revealing.
All this to say that Chilton and Versteeg are right to focus on the collective defense of human rights through groups and organizations. It is just that the collective element goes well beyond their attention to churches, parties, and unions. It takes interest groups, of various shapes and sizes, to drive the defense of rights, for better or worse. And it seems that interest groups thrive in the legitimating umbrella and marketing bonanza of higher law. Would our American Airlines pilot be interested in advertising his position on guns were it not enshrined in the Second Amendment? I’m not so sure. Or at least I can’t imagine what the necktie would look like.
IV. The Phenomenon of Human Rights Branding
Which brings us to branding and my humble attempt to illuminate a curious phenomenon that I’ve observed lurking in our public space. It happens that there exists a tangled network of interest groups that spring from, and grow up around, the Constitution and international human rights instruments. We know that lobbying organizations are active in constitution-making. But the relationship is reinforcing. Constitutions create interest groups, whose creation has cyclical effects on the compliance—and idolatry—of the law.
This mutualism is most obvious in its most superficial form, the naming of organizations. Reading Chilton and Versteeg reminded me of this phenomenon, in their discussion of the interest group Article 19, a group that supports free speech around the world and takes its name from the Article of the Universal Declaration of Human Rights (UDHR) on such. This ingenious naming device combines the legitimating authority of higher law together with a mysterious number that invites curiosity and questions. Again, law legitimates the organization, but the use of its specific Article as an organizational name also legitimates law.
It happens that we have been living in an era in which naming organizations for sections of human rights law is in vogue. As good social scientists, we must conceptualize this naming strategy and give it a name. I will call it “chapter-verse branding,” and herein provide something of an informal census of its variants, guided by a rudimentary taxonomy.
The prototypical case of chapter-verse branding, at least for legal scholars, may be that of an interest group that acts to support some aspect of an Article or Section of human rights law. The group serves as a surrogate protector of the provision, or at least revels in the idea of such. Examples include Strategy 31, the Russian human rights group named after Article 31 in the Russian constitution, the right to peaceful assembly. Then there is Korgau123, a Kazakh organization that campaigns against violations of Article 123 of Kazakhstan’s Criminal Code, a provision that prevents sexual harassment in the workplace. Apparently, there is a German group named Artikel 38 that tracks the Twitter accounts of known Kremlin associates to determine their role in German elections. The organization’s name derives from Section 1 of Article 38 of the German Basic Law that states that the Bundestag shall be elected freely and fairly. It seems that international covenants and treaties, particularly the Universal Declaration of Human Rights, are especially inspirational. I mention Article 19 above. Another group has laid claim to Article 25; it is an architectural charity that uses “design to improve health, livelihoods, and resilience to disasters.” It’s a fittingly general approach to a similarly catch-all Article of the Universal Declaration.
Commercial organizations seem to be equally attracted to the legitimacy and moral power of human rights branding. Wrapping yourself in human rights law—at least until the trend crosses the Yogi Berra point2Yogi Berra on Ruggeri’s in St. Louis: “Nobody ever goes there anymore—it’s too crowded.”—might well be good business. Many know Title IX as the part of the U.S. Code that has paved the way for the equal treatment of women in college athletics; just as many now know it as a successful company selling sports attire for women. It used to be that you could buy fairly traded organic cotton clothing from Article 23, a company named for the UDHR provision regarding just and favorable compensation. Apparently, the company is not trading anymore, fairly or unfairly. Fortunately, the jewelry company Article 22 is still in business selling handmade crafts from Laos and celebrating the UDHR article about social and cultural rights and the “free development of one’s personality.” Article 24 of the UDHR is about the right to rest and leisure, so of course, a gastropub in Brighton, MA goes by that name. And so on. I can only hope that some Brazilians will open a sports enterprise named Chapter III, to capitalize on their country’s innovative section devoted to sports, complete with sports tribunals.
A third subspecies of chapter-verse branding inhabits the arts community. One of my favorites might be the small origami dove Kyu-chan, created by Charles Ward to celebrate Article 9, the “peace clause” of the Japanese Constitution. (“Kyu” is the word for the number nine, and “chan” is a term of endearment.) Through sheer cuteness, the bird seems to have furthered the campaign of appreciation for Japan’s unique, but seemingly endangered constitutional clause. Article 13 of the UDHR on the freedom of movement is the namesake for an art exhibition in New York that featured works on migration as well as a running community that organizes the Palestine Marathon that weaves through security checkpoints in Bethlehem. And then Article 14 of the UDHR, which deals with asylum, is also the name of the latest album by Sacramento, CA rockers American High, which reportedly includes “a dash of Californian charm, wrapped in a cozy blanket of bold and passionate political messages.”
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I could go on, but you get the point. It seems clear to me that law, especially the constitutional or international human rights kind, is a real source of inspiration and branding for social, cultural, and economic organizations. In this context, we can understand the appeal of the Second Amendment necktie, tattoo, and—perhaps—lifestyle. Important laws make for an instantly legitimate and concrete rallying cry and slogan. Is this iconography merely superficial and symbolic? Perhaps. But in a world in which people are hyperfocused on their personal “brand,” it seems possible that the optics matter to behavioral outcomes as much as do the fundamentals.
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Zachary Elkins is Associate Professor of Government at the University of Texas, at Austin and co-director of the Comparative Constitutions Project.
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