The Liberal Assault on the Constitution

33 Pages Posted: 15 Aug 2006

Date Written: January 2006

Abstract

This review essay analyzes Ran Hirschl's recent important book entitled Toward Juristocracy. The book sets out a leftwing case against individual rights and constitutionalism, examining the creation of bills of rights in several nations. In each case, he argues and presents evidence that the true purpose of the new constitutional rights was the desire of elites to preserve their status in society and prevent democratic demands for government action, such as redistribution of wealth. Hirschl contends that the empowerment of the judiciary associated with individual constitutional rights undermines the general welfare and benefits the elites. Various other prominent authors from the left have made similar claims. This claim is amenable to empirical testing, using several endpoints of concern to Hirschl - poverty, democracy, and labor rights. I use multiple measures for each of these endpoints as dependent variables, with independent variables of the existence of a bill of rights, the degree of judicial power in the nation, ethnolinguistic fractionalization, and corporatist governmental structure. This yielded twelve regressions, and in no case did the presence of a bill of rights or judicial power appear to undermine the social welfare objectives. The associations were as often positive as negative and in no case approached statistical significance. The dependent variable measures included several scales of absolute poverty, relative poverty, the magnitude of government transfer payments, electoral participation, competitiveness, the World Bank scale for democratization, unionization, strikes, labor regulation, and the labor share of national income. While the study involved a relatively small sample of developed nations, the results lend no support for the claim that judicially enforceable individual rights systematically undermine human welfare.

Suggested Citation

Cross, Frank B., The Liberal Assault on the Constitution (January 2006). Available at SSRN: https://ssrn.com/abstract=883113 or http://dx.doi.org/10.2139/ssrn.883113

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